Kentuckians will again consider a ballot initiative to amend the state constitution in an effort known as “Marsy’s Law,” in what advocates say will institute specific rights and due process for crime victims. Yet critics of the amendment argue Marsy’s Law fails to live up to its promise for victims, and could create significant legal problems with criminal proceedings.
Marsy’s Law is a constitutional amendment first approved by California voters in 2008, and has since been approved by voters in Illinois, North Dakota, Ohio, Florida, Georgia, North Carolina, Nevada, Oklahoma, Wisconsin, and South Dakota. A national group backed by a California billionaire lobbies across the country for Marsy’s Law.
Kentucky voters previously approved the amendment by a wide margin, but the Kentucky Supreme Court blocked the amendment, ruling the entire proposal should have been included on the ballot instead of a 38-word summary.
In Kentucky, the ballot amendment states it would provide to crime victims:
The “reasonable right” upon request to be present and heard in proceedings including pleas, sentencing, consideration of commutation and pardons, and other matters “involving the right of a victim” beyond grand jury proceedings.
The right to be present at all proceedings on the same basis as those accused beyond grand jury proceedings.
The right to proceedings without “unreasonable delay.”
The right to consult with a Commonwealth’s attorney or the Commonwealth’s attorney’s designee.
The right to “reasonable protection” from the accused during criminal proceedings.
The right to timely notice upon request of release or escape of accused.
The right to consider “the safety of the victim and the victim’s family” when setting bail, determining whether to release a defendant, and when setting conditions for a defendant’s after an arrest and conviction.
The right to “full restitution” paid by a convicted defendant determined by a court, unless in the case of a juvenile offender.
The right to a victim’s fairness and consideration of a victim’s “safety, dignity, and privacy.”
The right to be informed of and assert the stated rights.
Republican State Sen. Whitney Westerfield of Hopkinsville co-sponsored the bill that put Marsy’s Law on the ballot, passing both legislative chambers with large majorities. He said while Kentucky does have some rights for crime victims within state statute, Marsy’s Law would expand on those rights and implement them into a stronger position in the state constitution.
“It really resonated strongly with me the value of putting these rights in the constitution,” Westerfield said. “Their life, their lives are affected by that crime. Whether or not the system has yet adjudicated someone guilty of it yet, doesn't change the fact that someone has still been hurt and been wronged.”
Westerfield pointed to support for the amendment from various groups including the National Alliance on Mental Illness in Kentucky, the Kentucky Association Chiefs of Police, Kentucky League of Cities, and the Children’s Advocacy Centers of Kentucky, as evidence the amendment has a broad coalition of support.
Yet at least two groups in Kentucky state their opposition to the amendment -- the Kentucky Association of Criminal Defense Lawyers (that unsuccessfully sued to keep the amendment from the ballot in 2018) and the American Civil Liberties Union (ACLU) of Kentucky.
Heather Gatnarek is a staff attorney with the ACLU of Kentucky. She said the language of the ballot amendment could turn the idea of “due process” on its head by designating a specific party in a criminal proceeding as a “victim”, while also failing to provide a clear mechanism for ensuring the listed rights for crime victims.
For example, Gatnarek said one place in the amendment states a victim shall “have standing” to assert the listed rights, while in another place stating a victim shall not have “party status” to enforce the rights.
“On its face and speaking to you as an attorney, I don't know what that means. I don't know what the difference is,” she said. “I think that's likely to cause an awful lot of confusion throughout our courts.”
Gatnarek said the amendment also doesn’t add allow for recourse for victims if their listed rights aren’t protected. She added if the rights of crime victims aren’t being currently protected in Kentucky’s criminal justice system, then conversations need to happen regarding how to ensure protection, without going to the extent of changing the state constitution.
When asked whether or not Marsy’s Law disrupts due process by designating one party a “victim” in a criminal proceeding, Westerfield claimed the ACLU’s assertion was a “bold-faced lie” and said grand juries identify victims when issuing indictments. He said the state still carries the burden of proof, and Marsy’s Law provides a set of rights for a crime victim.
When asked if the amendment has an enforcement mechanism, Westerfield said the mechanism would be the state constitution.
One group serving and advocating for crime victims, the Kentucky Coalition Against Domestic Violence (KCADV), stated a neutral position on the amendment. But the coalition also raised concerns regarding how the amendment could overburden prosecutors’ offices and disenfranchise underserved populations from having their rights enforced.
A position paper issued by the KCADV states in part, “At the heart of why victims and defendants do not receive justice from our court system is underfunding at every level – the clerks, the judges, the public defenders and the prosecutors. Amending the Constitution is not going to fix that. It will likely make it worse.”
The KCADV asserts because Marsy’s Law requires a victim to “opt-in” to receive notifications of criminal proceedings, underserved communities – LGBTQ people, low-income people, those with a disability, people of color, and more – may be scared to hire, or unable to hire a private attorney to ensure listed rights are enforced.
The position states in part, “Marsy’s Law was a solution brought into Kentucky from the outside by a special interest group that has a national agenda. This was not the result of a thoughtful process of how we can really improve outcomes for both defendants and victims, based on the identified needs of Kentucky victims.”
The legal counsel for the coalition declined a request for an interview, saying the position paper stands for itself.