The following article is an opinion piece and reflects the views of only the author and not necessarily those of AllOnGeorgia.
Georgia has 5 Constitutional Amendments on the ballot this year and while I plan to vote NO on all five, the one I am most adamantly against is No. 4.
Amendment 4, known as Marsy’s Law, addresses rights of victims of crime. It is part of a national effort to add additional rights and privileges for victims of crime. It’s named after California college student Marsalee “Marsy” Nicholas, who was stalked and killed in 1983 by an ex-boyfriend. It is already codified in state statute.
The amendment allows, upon request, crime victims to have specific rights, including the right to be treated with “fairness, dignity, and respect;” the right to notice of all proceedings involving the alleged criminal; the right to be heard at any proceedings involving that release, plea, or sentencing of the accused; and the right to be informed of their rights. The amendment also explicitly stated that the legislature was able to further define, expand, and provide for the enforcement of the rights.
The measure has been approved by voters in California, Ohio, Illinois, Montana, North Dakota and South Dakota, but not without effects. In 2018, voters in Florida, Georgia, Kentucky, Nevada, North Carolina and Oklahoma will consider versions of it.
The amendment will appear on the Georgia ballot as follows:
Shall the Constitution of Georgia be amended so as to provide certain rights to victims against whom a crime has allegedly been perpetrated and allow victims to assert such rights?
Sounds heartwarming, but…that’s intentional from the powers that be. I’ll be voting NO and here’s why:
My reasons for voting NO are numbered but are in no particular order of importance.
- As proposed in the Constitutional Amendment, it deals with “alleged” perpetrators, not those already convicted of a crime. In some states, unintended consequences have resulted in problems of due process.Read this from The Gazette: “Marsy’s Law would interfere with a defendant’s Sixth Amendment due process rights, said John Piro, the chief deputy public defender for Nevada’s Clark County, by giving people harmed by a crime the right to be heard before the alleged perpetrator has pleaded innocent or guilty.” And in South Dakota, the approved Marsy’s Law has resulted in longer jail stays while courts wait for victims to be notified. Officials say it’s led to notification in even the simplest of crimes, like vandalism, and swamped staff with additional paperwork.
- It’s duplicative because it’s already state law. Joe Mulholland, a District Attorney in South Georgia, told his local paper that the amendment is technically already part of the law. “It’s already technically part of Georgia law, but the legislature felt like being a part of the constitution is even stronger. Having that and knowing its part of the constitution, I think it gives peace of mind to prosecutors.” Victims have the opportunity to opt-in to the notification process and be involved in the proceedings as much as they so choose under current law.
- It will bog down the legal process. The state of Illinois hasn’t seen a slow down in actual proceedings, but Lee Roupas, president of the Illinois Prosecutors Bar Association has said “There’s definitely an increase in administrative burden as far as notification goes.” since the state passed the measure in 2014.
- Changing the State Constitution is serious business, something the ACLU opposes because it will leave no room for discretion or change without ANOTHER Constitutional Amendment.
“We certainly believe that crime victims should be supported, but Marsy’s Law is really a one-size-fits-all, outsourced approach for how to support crime victims,” said Susanna Birdsong of the ACLU of North Carolina in the News Observer, which is urging voters to reject the amendment. She says the change “leaves no legislative discretion to fill in the gaps or complete the picture,” tying the hands of state leaders from tweaking the process when needed.
- It will be expensive.
Georgia has not released any documentation on the financial impact, but in North Carolina, where the measure is also on the ballot, the legislature’s nonpartisan Fiscal Research Division estimates Marsy’s Law could cost at least $11 million a year to fund.
In South Dakota, lawmakers have worked to repeal the Constitutional Amendment earlier this year because of the high costs. KSFY ABC reported that ““Marsy’s Law laid the ground work for a costly victims notification system, with a price tag of more than $100,000 dollars for Minnehaha County. It’s costing the state upwards of $5 million.”” Those same lawmakers say it has also hampered ongoing investigations and has caused confusion over what information can and cannot be released to the public and the media. Law enforcement officials have even said it hinders how the public assists with investigations.
And Montana officials have said similar things: “Somebody steals a hair brush from Target department store, well is the corporation the victim? Does that mean that my office is obligated not to just talk to the clerk at Target who is victimized and the store manager, but do I have to talk to corporate council at wherever that corporation is headquartered,” Yellowstone County State’s Attorney Scott Twito said. In addition, the Montana version of the law was never implemented because of a state Supreme Court challenge.
- It makes some people more equal under the law than others. This Constitutional Amendment would actually provide more rights for victims than it would for anyone else under the law, including the accused which is only exacerbated by the fact that it will be in the Constitution.
- The group pushing Marsy’s Law is well-funded. It’s billionaire backed and millions of dollars are being funneled in to each state where the initiative is on the ballot, which is unusual for an initiative that would be for limited government. Henry Nicholas, the billionaire founder of semiconductor company Broadcom, is the brother of Marsy, who the bill is named after. With such intense ties to the cause, it’s no wonder the advocates are willing to see it passed at all costs, regardless of financial or justice system-related impact. He has spent $27 million, without counting funding in 6 states in 2018, to get the measure passed in various states.
- Because the group is well-funded, a number of television and social media ads have been sponsored and they’re using fear to tug at the heart strings of Georgians. I don’t want any initiative passed because of fear — and it’s an unprincipled approach to policy.
The first one, released in late September, falsely implies that victims of crimes do not have equal rights under the Constitution, which is not true. You can watch it below.
This is more about recourse for victims than anything. The state law, which is already in place, that requires notification doesn’t have a pathway for victims to actually gain anything if they are not notified or something happens. This would allow for claims of a violation of their constitutional rights should the court system fail to notify them. It sounds nice, but I still feel strongly that this isn’t the intended purpose of our Constitution. It’s frightening that the end goal is to have the U.S. Constitution amended to include this, according to the Gazette in reporting on the backer.
Benita Dodd from the Georgia Public Policy Foundation also said in an article published on their website that “A constitutional amendment is no place to risk infringing the rights of someone accused of a crime. The accused have the presumption of innocence until convicted; their life and liberty are at stake. For many suffering victims and their surviving families, there’s a fine line between justice based on a court of law and vengeance based on the alleged wrongdoing.”
And I agree.