Marsy Nicholas was shot in the head by her ex-boyfriend in 1983, dying hours later. Just a week after her murder, her mother and brother ran into her killer in public. He was out on bail, but no one had told them. They argued that the pain of the confrontation could have been averted had they been notified of his release. Her brother, Henry Nicholas, became an advocate for victims’ rights. And so Marsy’s Law, a crime victim bill of rights, was born.
Marsy’s Law requires crime victims be notified about criminal proceedings, permitted to participate in relevant proceedings, and protected from the accused. It also mandates that victims are entitled to privacy and have the prerogative to refuse to cooperate with investigations and legal proceedings short of a subpoena or court order. California passed the bill in 2008.
Nicholas went on to found an organization, Marsy’s Law for All. With a net worth of $3.3 billion, he funds the organization out of pocket. Nicholas was behind the adoption of similar laws in Illinois, Montana, North Dakota, South Dakota, and Ohio, though Montana’s did not survive state supreme court review. The dark irony is, Nicholas has been accused of assaulting women, among other crimes.
On Nov. 8, 2018, Nicholas saw another major victory: Florida, Georgia, Kentucky, Nevada, North Carolina, and Oklahoma passed versions of Marsy’s Law.
All six new iterations of Marsy’s Law contain the same core elements as the original California bill. There are a few variations. Georgia’s law creates a single process for crime victims to challenge any violation of their rights. Florida, Kentucky, and Oklahoma added language dictating that victims’ rights be protected “in a manner no less vigorous” than the accused’s rights.
These laws have grave downsides.
At cross-purposes with its intent, perhaps, Marsy’s Law burdens law enforcement and court officers. Putting victims’ privacy first and allowing them to refuse, say, discovery, makes investigating harder for law enforcement. When there are multiple victims, their rights to privacy can put them at cross-purposes when it comes to getting access to information about the crime. It’s also a threat to government transparency.
Ensuring that crime victims of all types of crime—think petty theft—are notified before every step of the proceeding, and have the opportunity to participate, is labor intensive, costs a ton, and slows legal proceedings. It can also prolong defendants’ detention.
Under almost any enforcement scheme, a Marsy’s Law-type bill of rights for crime victims comes at the expense of defendants’ rights under the Constitution. There is, after all, a constitutional right to a speedy trial, and to liberty. Taken as a whole, these laws also give the state an advantage, increasing the likelihood of wrongful conviction.
Both New Hampshire’s and Idaho’s legislatures have rejected Marsy’s Law. Kentucky no sooner proposed Marsy’s Law than ended up in court over it (for the second time). New Hampshire instead specifies that crime victims’ rights are protected “to the extent … they are not inconsistent with the constitutional or statutory rights of the accused.” About 30 states address victims’ rights in their constitutions in a similar manner, balancing victims’ rights with the Constitution’s guarantees.