Marsy’s Law represents a nationwide campaign that seeks to place crime victim rights in state constitutions. Many states and the federal government already have similar victims' bill of rights in their laws, but their enforcement has been spotty and inconsistent. By placing these rights in state constitutions, Marsy's Law strives to give victims more options to hold government actors accountable for failing to protect victims’ rights. While the law’s intent is certainly laudable, its implementation has faced challenges. And, in certain cases, the constitutional rights of victims have come up against those of defendants.
Marsy’s Law is named after a 21-year-old murder victim, Marsalee Nicholas. Her ex-boyfriend stalked and murdered her in 1983. Days after Marsy's murder, her mother ran into the accused killer in the grocery store. No one told the family that the accused had been released on bail.
To prevent other families from enduring similar pain and give victims a stronger voice in the criminal justice system, Henry Nicholas (Marsy’s brother) created the nationwide campaign, Marsy’s Law for All. The campaign seeks to place victims’ rights on equal footing with criminal defendants’ rights in every state constitution. California (home to Marsy and her family) became the first state in 2008 to approve Marsy’s Law as an amendment to the state constitution. (Prop. 9.)
Marsy’s Law aims to place the following victims’ rights (among others) in state constitutions:
Some rights (such as the right to be treated with dignity) require no affirmative action on a victim's part. But other rights, such as notification rights, trigger only upon the victim’s request.
Marsy’s Law doesn’t specify which agency or institution bears responsibility for providing these rights. Generally, the details fall to lawmakers to sort out in statute. In practice, responsibility falls to law enforcement, prosecutors, judges, courts, correctional facilities, victim organizations, and parole boards.
If most states already have victim rights outlined in statute, why go to the effort to amend state constitutions? For two reasons. First, constitutional protections create enforceable rights for victims (which many state statutes lack). Second, unlike statutes, constitutional rights cannot be changed or repealed by lawmakers.
State and federal constitutions provide rights to criminal defendants, such as the right to a jury trial and counsel, among others. If the criminal justice system fails to provide those rights, the criminal defendant can seek recourse through the courts. For instance, a defendant can ask the court to suppress any evidence obtained by police in violation of the defendant’s Fourth Amendment right.
Marsy’s Law seeks to place crime victims’ rights on par with those of criminal defendants. By placing these rights in state constitutions, a victim can seek recourse for a violation. Many state statutes enumerate victims’ rights but don’t offer clear options for a victim to enforce those rights. If the responsible agency fails to notify the victim of the accused’s release from jail and the victim suffered harm, often little can be done. Placing rights in the constitution gives them teeth.
Statutes are vulnerable to shifting political climates. Lawmakers can enact statutes just as quickly as they can amend or repeal them. Changes to constitutional provisions, however, require a lengthier and more complicated process. Constitutional amendments typically involve legislation or a citizens’ initiative to get on the ballot and then passage by voters. By putting Marsy’s Law in state constitutions, it provides a level of permanency and stability that state statutory provisions lack. In addition, constitutional language is the supreme law of the land. Federal and state statutes cannot contradict their respective constitutions, and if they do, the court can strike them down as unconstitutional.
The goal of Marsy's Law appeals to a sense of fairness and justice. As discussed above, many reasons support providing and ensuring victims' rights, but the implementation of Marsy’s Law has also come with challenges and opposition.
Challenges. States and responsible agencies have grappled with the law’s vague language and unfunded mandates. For instance, the law requires notification to victims throughout the criminal justice process. But who’s a victim? Does it include extended family members? Which agency must provide the notice? When? How? And who pays for notification systems?
Opposition. Opponents also challenge the very underpinning of the law—providing victims with rights equal to defendants. They argue the constitution protects citizens from government abuse—for instance, the Fourth Amendment protects citizens from random and baseless police searches. Victims’ rights, on the other hand, don’t serve as a check on government power. And, by placing the rights of criminal defendants and victims on equal ground, certain rights can clash and undermine the criminal justice process. Say a victim doesn’t receive timely notice of a defendant’s bail hearing. Should the defendant (still presumed innocent) remain behind bars without a hearing while waiting for officials to send the proper notification? Should an inmate’s parole hearing (and potential release) be delayed to accommodate the crime victim’s schedule? In both instances, the criminal defendant’s due process rights conflict with the victim’s rights to notification and be heard.
Support. Proponents of Marsy’s Law argue that states already have victim rights’ laws—many of which required notifications of court hearings and custody status changes and allowed victims to be heard at sentencing. By placing these rights in the constitution, the law isn’t imposing new duties but rather gives more teeth to the law, adds a level of government accountability, and elevates awareness of victims and their plights.
Just over a dozen states have adopted Marsy’s Law as a constitutional amendment (as of January 2021). Other states (such as Arizona and Oregon) placed victims’ rights in their state constitutions prior to Marsy’s Law. These laws have faced several legal challenges over the years.
Ballot issues. Court rulings invalidated Marsy’s Law before it took effect in the states of Kentucky (2018) and Pennsylvania (2021). A similar fate befell Montana's ballot initiative in 2017. These cases involved procedural defects regarding the placement or description of the law on state election ballots. (Kentucky re-adopted Marsy's Law in 2020.)
Conflicting rights. Courts have also addressed conflicts between victims’ and defendants’ constitutional rights. For example: Does a victim’s right to refuse an interview or discovery request violate a defendant’s right to confront an accuser? Does a victim’s right to be present at trial extend to sitting at the prosecutor’s table or would that unfairly influence the jury? Do victim notification requirements apply to gubernatorial pardons and commutations?
Each state adopts and implements Marsy’s Law and other victims' rights differently, meaning a court challenge and ruling in one state doesn’t necessarily indicate how another state's court would resolve a similar issue. But, as you can see, trying to equalize victims' and defendants' rights comes with challenges.