The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
With all of the other election news in the past two days, an important long-term development in the criminal justice field may have been overlooked. Voters in six states—Florida, Georgia, Kentucky, Oklahoma, Nevada, and North Carolina—all approved amendments to their state constitutions expanding the rights of crime victims. Known as "Marsy's Laws," these amendments provide an enforceable bill of rights for crime victims in the criminal justice process, guaranteeing such things as rights to notice of court hearings, to attend court hearings, and to be heard at particular points in the process. These amendments help to set the stage for a future effort to amend the U.S. Constitution to protect victims rights there as well.
The effort to a pass bills of rights for crime victims can be traced back to 1982, when the President's Task Force on Victims of Crime called for a federal amendment protecting victims. In a report issued that year, the Task Force concluded that the criminal justice system "has lost an essential balance. … [T]he system has deprived the innocent, the honest, and the helpless of its protection.… The victims of crime have been transformed into a group oppressively burdened by a system designed to protect them. This oppression must be redressed." The Task Force advocated multiple reforms, such as prosecutors assuming the responsibility for keeping victims notified of all court proceedings and bringing to the court's attention the victim's view on such subjects as bail, plea bargains, sentences, and restitution. The Task Force also urged that courts should receive victim-impact evidence at sentencing, order restitution in most cases, and allow victims and their families to attend trials even if they would be called as witnesses. In its most sweeping recommendation, the Task Force proposed a federal constitutional amendment to protect crime victims' rights "to be present and to be heard at all critical stages of judicial proceedings."
In the wake of this recommendation for a federal constitutional amendment, crime victims' advocates considered how best to pursue that goal. Realizing the difficulty of achieving the consensus required to amend the United States Constitution, advocates decided to try to initially enact state victims' amendments. They have had considerable success with this "states first" strategy. To date, about 35 states have adopted victims' rights amendments to their own state constitutions protecting a wide range of victims' rights.
The state constitutional amendments were passed in two waves. Beginning with Rhode Island's enactment of a statement amendment in 1986 and Michigan's in 1988, more than 30 states have approved state constitutional amendments in what might be regarded as the first wave of protection of crime victims' rights. The amendments provided a broad range of crime victims' rights in the criminal justice process. And even in states without constitutional protection, statutory protections for victims' rights were enacted. In many states, however, the amendments and statutes lacked effective enforcement mechanisms to ensure that their rights were fully implemented. As Attorney General Janet Reno explained in 1997 after a Justice Department review of the landscape, these state efforts "failed to fully safeguard victims' rights."
One way of improving enforcement of state crime victims' rights enactments is through strengthened state constitutional protections. In 2008, a second wave of state constitutional efforts began. In California, Dr. Henry T. Nicholas (the co-founder of Broadcom Corp.) backed the enactment of "Marsy's Law," named after his sister Marsalee (Marsy) Nicholas. She was stalked and killed by her ex-boyfriend in 1983. Only a week after her murder, Dr. Nicholas and Marsy's mother walked into a grocery store after visiting Marsy's grave and were confronted by the accused murderer. The family had not been told that he had been released on bail. The family also suffered further indignities during the criminal justice process.
Determined to prevent mistreatment of other victims in the process, victims' rights advocates supported a comprehensive rewrite of California's state constitutional amendment protecting crime victims. In November 2008, California voters overwhelming approved Proposition 9, making California's amendment arguably the strongest and most comprehensive in the country. Since then, similar Marsy's Law amendments have been added to the state constitutions of Illinois in 2014 and North Dakota and South Dakota in 2016. This past Tuesday saw amendments added to state constitutions in Florida, Georgia, Kentucky, Oklahoma, Nevada, and North Carolina.
While each of the amendments is tailored to local state conditions, they are all animated by the core value the crime victims have an important role to play in criminal proceedings. And that role can best be protected by a specific list of a right for crime victims. Nevada's version of the amendment illustrates the point. While in 1996 Nevada added a brief list of rights for crime victims (essentially just the rights to be present, notified, and heard), two days ago Nevada expanded protections for crime victims, by adding a much more comprehensive list of rights, a listed here:
Each person who is the victim of a crime is entitled to the following rights:
(a) To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment and abuse, throughout the criminal or juvenile justice process.
(b) To be reasonably protected from the defendant and persons acting on behalf of the defendant.
(c) To have the safety of the victim and the victim's family considered as a factor in fixing the amount of bail and release conditions for the defendant.
(d) To prevent the disclosure of confidential information or records to the defendant which could be used to locate or harass the victim or the victim's family.
(e) To refuse an interview or deposition request, unless under court order, and to set reasonable conditions on the conduct of any such interview to which the victim consents.
(f) To reasonably confer with the prosecuting agency, upon request, regarding the case.
(g) To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other postconviction release proceedings, and to be present at all such proceedings.
(h) To be reasonably heard, upon request, at any public proceeding, including any delinquency proceeding, in any court involving release or sentencing, and at any parole proceeding.
(i) To the timely disposition of the case following the arrest of the defendant.
(j) To provide information to any public officer or employee conducting a presentence investigation concerning the impact of the offense on the victim and the victim's family and any sentencing recommendations before the sentencing of the defendant.
(k) To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant and the release of or the escape by the defendant from custody.
(l) To full and timely restitution.
(m) To the prompt return of legal property when no longer needed as evidence.
As I have written elsewhere, these new state victims' rights amendments continue to build momentum towards an eventual effort to amend the United States Constitution to protect the rights of crime victims. The state amendments take advantage of the great laboratory of the states, proving that protections for crime victims improve their treatment in the system while not hampering defendants' rights. If Tuesday's votes are any indication, perhaps in the not-too-distant future Congress will begin the laudable effort of crafting a federal amendment extending rights to victims in the U.S. Constitution as well.