Criminal Defense

Marsy’s Law: Conflicting Rights of Defendants and Victims

July 21, 2023 by Anastasiia Ponomarova in Criminal Defense  Rights  
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The Story of Marsy Nicholas

The term Marsy’s Law was coined in honor of Marsalee Nicholas, a young woman who lost her life at age 21 due to a tragic act of murder. In 1983, Marsalee (Marsy) lost her life when her ex-boyfriend fatally shot her in California.

Not long after that, Marsy’s mother unexpectedly ran into her ex-boyfriend when he was temporarily released on bail, awaiting trial. Henry Nicholas, the brother of Marsy, initiated the “Marsy’s Law for All” movement across the country to ensure that the rights of victims are given the same importance as the constitutional rights of defendants.

Marsy’s law had been in place during the trial of Marsy’s accused murderer. Marsy’s family would have been notified when the defendant was released on bail, providing them with greater assurance.

The intention of Marsy’s Law for all was to incorporate the subsequent “rights” into state constitutions in support of victims:

  • The entitlement to receive dignity and respect during the entirety of the criminal justice procedure;
  • The entitlement to receive notification regarding court proceedings and decisions made for release;
  • The privilege to actively participate in criminal justice proceedings.
  • The privilege of being compensated, and
  • The entitlement to receive appropriate protection from the person who is being accused.

California pioneered Marsy’s Law in 2008 (through Proposition 9), establishing confidence in this groundbreaking decision. After legal challenges exposed significant problems with the comprehensive legislation, many proposed laws inspired by the original Marsy’s Law were either modified or completely invalidated, even though several other states had already adopted them.

The main concern regarding Marsy’s Law

It is noteworthy that Marsy’s Law-type ballot measures face a significant challenge, resulting in only a few states adopting similar laws. This is primarily because the wording of all Marsy’s Law legislation intentionally lacks clarity, and these laws lack funding provisions.

Voters firmly hold onto catchphrases such as “victims’ rights” and “equal protection” without considering the practical application of the laws they are being asked to vote for. Initiatives such as Marsy’s Law do not effectively address the practicality of the regulations they aim to establish.

Where does the financing originate to cover the expenses related to notifying all victims regarding procedures, including human resources and various expenses? Asking voters if they desire increased police presence in their neighborhoods to combat crime, yet neglecting to include financial provisions in the ballot to bring about this change, is just like having no confidence in the initiative’s success.

Federal Law vs. State Law, A Never-Ending Clash

A valid rationale exists behind the absence of Marsy’s Law being enshrined within a Constitutional amendment. At the state level, every legislation resembling Marsy’s Law finds its way into existence and becomes an active force in the legal realm.

When state and federal laws engage in an intricate dance of contradiction, a constitutional principle emerges victoriously – the supremacy clause, harmoniously nestled within the revered Article VI of our sacred constitution.

The supremacy clause reigns supreme with the doctrine of preemption, asserting that when laws collide (like those concerning medical marijuana implemented by states), the federal government takes the lead over its state counterparts.

The legislation resembling Marsy’s Law has stirred enough issues that it has faced fierce opposition from appellate courts, leading to the rejection of certain parts of the proposed law in several states.

One aspect that lies at the heart of the problem is the very foundation of the law: granting victims the same level of rights as those given to defendants. While the supposed objective is praiseworthy, the choice of words remains inexplicit, perhaps deliberately designed to leave room for interpretation.

The rights of the defendants and victims often clash and create a dilemma

The current provisions of the United States Constitution already ensure safeguarding citizens against governmental misconduct. To illustrate, as a principle of safeguarding due process, the Fourth Amendment protects citizens from arbitrary and unauthorized police searches.

Nevertheless, victims’ rights fail to serve as a deterrent to government authority. Suppose victims’ rights are given the same importance as the Constitutionally-protected rights of defendants. Certain rights may clash in that case, weakening the criminal justice system.

For example, consider a scenario where a person falls under the broad definition of a victim according to Marsy’s Law but does not receive prompt notification about the defendant’s bail hearing. In such a case, should the defendant, still presumed innocent under Federal Law, be held in custody without a hearing? At the same time, local law enforcement tries to locate all the victims involved to notify them. Alternatively, could an inmate’s parole hearing, which determines their release date, be rescheduled to accommodate the availability of a victim? Both cases involve a conflict between the defendant’s right to due process and the victim’s rights to receive notification and be given a voice.

It would be a flagrant violation of both federal and state law to extend the duration of a defendant’s detention based on invalid grounds, even if there is a desire to appear empathetic towards the victims.

While there is no specific guideline determining the exact duration of detention that can be considered unreasonably prolonged, legal precedent has recognized valid cases for prolonged detention even for periods as brief as four days, demonstrating the lack of a clear threshold.

Although we naturally want to sympathize with crime victims based on our moral values, the unclear nature of laws like Marsy’s Law evaluates who should receive support during a criminal case, a more intricate and complex process than simply determining deserving individuals. We wish to think that the solution is straightforward, but it is not. The importance of upholding fundamental constitutional rights outweighs enthusiastic hand-holding compared to federal due process rights.

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