Oklahoma House members’ unanimous vote Tuesday to put a constitutional amendment expanding crime-victims’ rights on the 2018 ballot suggests the need for it is obvious and indisputable.
“Marsy’s Law,” as it is called, would amend the constitution to both reinforce and extend the rights of all crime victims to certain treatment, information and restitution by the criminal justice system. Proponents say such laws are necessary to equalize the rights of victims with those of suspects and perpetrators.
But the issue may not be as simple as it seems.
In some states where a version of Marsy’s Law has passed, defense lawyers, prosecutors and even members of victims’ rights organizations have pointed to unintended negative consequences, such as delays in trials, longer case backlogs and increased costs.
Darla Juma, for example, was among the first to support Marsy’s Law in North Dakota when she first heard about it.
Supporters proposed the constitutional amendment to add a series of specific and broad rights for crime victims, including the right to privacy, to be heard during almost all court proceedings, to be notified of all their rights, and to have their rights protected at least as thoroughly as the rights of the accused.
As the president of the North Dakota Victims Assistance Association, Juma figured supporting the voter referendum was a “no-brainer,” even though she felt the state already had strong protections for victims.
Juma eventually withdrew her support and urged voters to reject the state question. She became concerned that the new legal and administrative requirements would further burden an already resource-strained legal system.
“Once you start digging into and asking questions, the people pushing for this didn’t have answers,” she said.
As in four other states, North Dakota voters went on to handily pass the proposal last year.
Supporters of Marsy’s Law, led by a California billionaire who has spent millions trying to get the laws added to state constitutions across the country, are undeterred by such misgivings.
“We are not talking about diminishing anyone’s rights,” said Kim Moyer, Oklahoma state director for Marsy’s Law for All, the national organization spearheading the effort here and in other states. “This is just to elevate crime victims’ rights to the same level of those who are accused of committing the crime.”
What Proposal Would Do
The passage of Senate Joint Resolution 46 means Oklahomans will head to the polls for the second time in 25 years to add rights for crime victims.
In 1996, a state question approved by 91 percent of voters added a constitutional amendment with many of the provisions in the model legislation being pushed by Marsy’s Law for All. Those state that:
>Victims must be treated with fairness, respect and dignity, and be free from intimidation, harassment or abuse;
>Victims or their families have the right to know the status of investigations or cases;
>Victims or their families have the right to know the location of defendants following arrest and when they are released or escape from confinement;
>Victims or families have a right to be present at any proceedings where the defendants have a right to be present, to be heard at any sentencing or parole hearings, to be awarded restitution, and to be informed by the state of the constitutional rights of victims.
In addition, state law lists 17 specific rights for victims that overlap and expand on several of these.
The Marsy’s Law amendment, if passed, would further add to these and, in some cases, elevate statutory protections to the constitutional level. It would add provisions for a constitutional victims’ rights to privacy, “timely” restitution and reasonable protection.
New language also states victims’ rights would be protected in a “manner no less vigorous than the rights afforded to the accused” and that victims can be heard at almost any court proceeding involving the accused.
The proposal expands the definition of victim to any person who is “directly or proximately harmed” by the crime. It does not make a distinction among crimes the law would apply to.
Al Hoch, president of the Oklahoma Criminal Defense Lawyers Association, was surprised when he first learned about the details in Marsy’s Law.
When he read the legislation, he found that the much of the language was requiring things already occurring in the state, such as the notification requirements.
And the new provisions, he argues, are overly broad and may conflict with existing state and federal rights of the accused.
For example, he said, an addition to the constitution allowing victims or their lawyers to have victims’ rights “enforced” in court could allow victims or their lawyers to demand that judges reject plea agreements or appeal bond decisions or other rulings.
Hoch said even if these types of appeals are rejected, it could delay trials, add to the backlog of cases and ultimately cost state and local governments time and money in defending and prosecuting crimes.
“One of the other rights in Marsy’s Law is to get a speedy trial for the victim,” he said. “But they are just going to be doing just the opposite.”
Oklahoma’s proposed version of Marsy’s Law differs somewhat from those approved in five other states – California, Illinois, Montana, South Dakota and North Dakota – including containing fewer specific rights.
But those states’ experiences could offer hints of what’s in store for Oklahoma if the amendment passes.
Birst, the head of the North Dakota State’s Attorneys Association, said Hoch’s fear that cases would be delayed is one of the main issues he’s seen in the few months that Marsy’s Law has been in effect.
Bond hearings are taking longer and requiring more time to schedule because many victims are exercising their right to testify.
“It has slowed things up,” he said . “It didn’t stop things altogether, but it has definitely put a little pause on a number of cases. As of right now, our current staffs have absorbed the extra workload, but there is potential for increased costs to beef up the system.”
In South Dakota, many counties have already added staff to comply with the expansion of who is a victim under its version of Marsy’s Law.
Pennington County State’s Attorney Mark Vargo said having to hire four employees to help notify victims of their rights and the statuses of their cases will cost an extra $161,000 for his county of about 100,000 residents.
“This is uncharted territory,” he said. “We don’t know how many people we will need to do the work.”
A similar scenario is playing out in Montana, where the Great Falls city attorney recently announced it will spend $90,000 this year on additional prosecutors, and in Bozeman, where officials are exploring hiring additional staff.
Jack McDonald, an attorney with the North Dakota Newspaper Association, said there have been inconsistencies in how police in different localities have interpreted the laws.
Some agencies haven’t changed their practices, but others are withholding names, addresses and other information from the media and public following crimes, accidents and fires.
“It’s probably going to take a (state) Supreme Court ruling before we see any uniform polices being set,” he said.
“You can make the argument of whether this is worth the investment, and evidently our voters agreed, but this was definitely an unfunded mandate for us,” said Aaron Birst, executive director for the North Dakota State’s Attorneys Association. “And we are still trying to wade through all of it.”
The Needs of Crime Victims
Jan Peery, CEO of the YWCA Oklahoma City, sees the struggles that victims face when they come to the organization’s shelter.
Victims of domestic abuse, sexual assault and other crimes have to summon the strength to speak up and have their voices heard, but the court system rarely empowers them to do so, Peery said.
“When someone is arrested of a crime, they are read their Miranda Rights and at that point they learn about their rights,” Peery said. “But what about the victims? No one ever tells them about their rights.”
Proponents argue that passing Marsy’s Law will encourage law enforcement groups to be more proactive in notifying victims. Since this is already required, it shouldn’t be seen as an unfunded mandate for police, said Moyer, the state director for Marsy’s Law for All. She pointed out that the Oklahoma Fraternal Order of Police and District Attorneys Council support the measure.
“This basically says, ‘We already know you are doing this – everyone understands it’s a constitutional protection.’ And it basically solidifies the process.”
Moyer added that because Marsy’s Law reaffirms current constitutional protections and elevates statutory victims’ rights, the financial cost to the state or local governments to comply will be minimal.
Peery said even if Marsy’s Law does require additional work or money, that effort would be still worthwhile.
“Unless someone has been the victim of a serious crime and gone through this process, they wouldn’t be able to comprehend how difficult it is,” she said. “I think it’s time to step up and say our victims of crime need to be supported.”