The Case Against Marsy’s Law: The Proposed Victims’ Rights Amendment Is More Complicated Than You’ve Been Led to Believe

On November 30, 1983, Kerry Conley shot and killed his former girlfriend of three years, Marsy Nicholas, a blonde-haired, blue-eyed senior at the University of California–Santa Barbara. Seventeen months later, Conley was convicted of second-degree murder and sentenced to life behind bars.

Marsy Nicholas was one of 2,640 homicide victims in California in 1983. Most of their names have faded from memory, data points from a comparatively violent era. But thirty-five years later, Marsy’s lives on, adorning a wave of criminal justice reforms sweeping the country—including, potentially, North Carolina.

The roots of Marsy’s Law, however, lie less in the twenty-one-year-old’s murder than in an incident that happened about a week later. Unbeknownst to Marsy’s family, Conley bailed out of jail for $100,000. One day, he ran into Marsy’s mother, Marcella Leach, at a grocery store. Leach, who had just come back from a visit to her daughter’s grave, was shaken by the encounter.

That moment birthed a movement. Marsy’s parents came to believe that while criminals had some twenty rights spelled out in the U.S. Constitution, victims and their families had none—not even the right to be told their daughter’s killer was walking the streets. They founded a nonprofit called Justice for Homicide Victims, dedicated to righting this perceived imbalance, and pushed for stiffer penalties for convicted felons, including California’s controversial Three Strikes Law.

In 2008, Marsy’s brother, Henry Nicholas III—who’d helped launch the computer-chip manufacturer Broadcom Corporation and is now worth an estimated $3 billion—took up the family’s cause, recruiting a team to craft what became Marsy’s Law and get it on the California ballot. It passed with 54 percent of the vote, enshrining into California law a mandate that victims should be notified at every step of the justice process—from bail hearings to sentencing to parole proceedings—and that officials must take into account victims’ safety when assigning bail or reviewing parole.

Nicholas wasn’t finished. In 2009, he founded Marsy’s Law for All, which aimed to add similar rights to the U.S. Constitution. While that hasn’t happened, Nicholas’s effort has spread all over the country—to Ohio, Illinois, the Dakotas, and Montana, and on Tuesday’s ballot in Florida, Georgia, Kentucky, Nevada, Oklahoma, and North Carolina (see “Follow the Money”).

The exact wording varies from state to state, but the general principles are the same: If they desire, victims should be notified of all court proceedings and have the right to speak at hearings involving sentencing or potential release. They should also be notified before a criminal is pardoned or released, and afforded privacy from the accused and their attorneys.

In addition, the North Carolina version of Marsy’s Law effectively expands the number of victims covered under the state’s Crime Victims’ Rights Act of 1998 to include cases involving juvenile defendants and certain misdemeanors.

Proponents say Marsy’s Law gives victims a voice in a system that too often ignores them. While crime victims in North Carolina have constitutional rights—including the rights to restitution, to be notified of court proceedings, and to be heard during the trial—they say the state has no process in place to inform victims of those rights.

This amendment bridges that gap, says Frances Battle, executive director of the North Carolina Victim Assistance Network. If it passes, she argues, fewer victims will be blindsided by developments in their cases.

“Marsy’s Law,” Battle says, “is actually going to require that there are processes in place to ensure that victims do not fall through the cracks, that they are not inadvertently looked over, that they are not forgotten.”

That’s proven to be a compelling sales pitch. Marsy’s Law has never failed at the ballot box—and few observers believe it will do so in North Carolina. The proposed amendment offers voters a binary choice: Do you want to protect victims from criminals, or not?

This was such an apparent no-brainer that when the General Assembly put the proposal on the ballot this summer, only nine state representatives and one senator—all Democrats—voted against it. And even the progressives lobbying voters to “Nix All Six” amendments have largely avoided discussing this one on its merits; at most, they characterize it as a cynical political ploy or a heavy-handed solution to a problem that doesn’t actually exist.

But scratch the surface and the question becomes more complicated. The amendment could have huge ramifications for North Carolina’s criminal courts, clogging the justice system and driving up costs. More important, critics say, Marsy’s Law will infuse emotion into what is supposed to be a fact-based process, allowing victims with financial means to pressure judges to impose harsher punishments—and, in the process, further exacerbating racial disparities in the justice system.

“This will distort the system,” says Duke University law professor James Coleman. “It introduces victims into constitutionally protected proceedings in a way that likely will prejudice the defendant on the basis of factors that will be arbitrary—emotion, wealth, the ability to do it, who can show up at every hearing in a case, people who have the flexibility that money provides.”

To state representative Nelson Dollar, a Wake County Republican who sponsored the bill putting Marsy’s Law on the ballot, this is a simple and noncontroversial idea: The rights guaranteed to victims under the state constitution and state law are weak and ambiguous. Marsy’s Law would clear up any confusion and ensure that victims are taken seriously.

“The whole point of the justice system is to provide justice for those who have been the victims of crime,” Dollar says. 

That assertion is “contrary to law and fact,” counters state representative Marcia Morey, a Durham Democrat and former judge leading the Nix All Six campaign. The system’s purpose, she says, is to provide a fair trial for those accused of crimes. The notion that victims deserve rights “equal” to those of defendants fabricates a false dichotomy—defendants against victims, rather than against the state.  

“In terms of the work that police and prosecutors do, they don’t do that work for the victims—the victims benefit from it—but they are working for the people of North Carolina,” Coleman adds.

Like the other amendments, Marsy’s Law was placed on the ballot in the waning days of the legislative session, with little committee and no floor debate. Voters will be presented with a single sentence—“Constitutional amendment to strengthen protections for victims of crime; to establish certain absolute basic rights for victims; and to ensure the enforcement of these rights”—following an equally anodyne question about whether the state should protect the rights of hunters and fishermen (see “The Other Constitutional Amendments”).

This is “candy” for voters, Morey says, designed to both muddle opposition to more controversial amendments like voter ID—those advocating against all six amendments can now be painted as anti-victim—and to drive conservatives to the polls. The framing is difficult to disagree with, especially if voters aren’t familiar with the fine print. And finding that fine print is difficult. As with other amendments, the General Assembly hasn’t written so-called implementing legislation spelling out precisely what the amendment will do.

“This is just icing on a shallow cake,” Morey says. “It’s deceptive. It sounds good. It’s an amendment similar to ‘Do you love Mom and apple pie?’ How can you vote against it? But we don’t know what we’re getting with this, and it’s a get-out-the-vote scheme that actually can do a lot of damage to our criminal justice system.”

The amendment, critics say, is unnecessary. State law already protects crime victims and funds services to protect them.

“If there are changes people want to address to our current victims’ rights statute, they should be doing that through the law and not through the constitution,” says ACLU of North Carolina senior counsel Susanna Birdsong. She calls Marsy’s Law “potentially an empty promise,” in that lawmakers haven’t committed to providing the funding it will require. 

Indeed, it’s not entirely clear how Marsy’s Law would be implemented, or how much it would cost. 

A June report from the legislature’s Fiscal Research Division says the amendment will cost at least $8.8 million in 2021 and $11.2 million a year thereafter—the price of funding 150 victim service providers to notify and coordinate with victims. But even if the state coughs up that money, district attorneys are worried that the amendment’s mandates will strain their already-overburdened offices, at least according to David Rudolf, a Charlotte-based defense attorney who represented Durham author Michael Peterson and former Carolina Panthers receiver Rae Carruth in high-profile murder trials.

“The DAs are very, very concerned about it. [Marsy’s Law] will create enormous burdens on the taxpayers of this state for the DA to even begin to comply,” Rudolf says. “It’s hard for DAs right before an election to come out and say that, but that’s the truth.”

(The N.C. Bar Association says it has no position on Marsy’s Law, and the director of the N.C. Conference of District Attorneys did not respond to the INDY’s request for comment. Neither did Wake County District Attorney Lorrin Freeman, who is up for reelection, Durham County District Attorney Roger Echols, who lost in the May Democratic primary, or Durham County District Attorney-elect Satana Deberry.)

Beyond that, the amendment’s financial implications are hazy. The FRD report says the impact on the Administrative Office of the Courts is unclear. However, a draft 2017 report from the AOC on an earlier Marsy’s Law proposal estimates it would eventually cost $30.5 million a year to hire additional staff. And that doesn’t include “other costs of implementation.” Not only would the law add misdemeanors to the crimes for which victims would receive assistance—thus vastly increasing the number of crimes covered by the law—but it might also lead to longer, more expensive trials, critics say.

The amendment’s supporters say these estimates are inflated. Dollar contends that such a scenario hinges on district attorneys shifting positions that are currently funded by grants onto the state’s dime. He doesn’t think Marsy’s Law will cost taxpayers a thing.

“To the extent that some [district attorneys] have to perform a little more work, it’s because they are not providing the services and the information to victims that they should have been doing already,” Dollar says. “If it requires me to do more work to do my job the right way, I don’t consider that additional workload. I consider that the scope of what our responsibilities are.”

More important to civil rights advocates than the amendment’s fiscal implications—after all, $30.5 million a year is just 0.1 percent the state’s $23.9 billion budget—is the way Marsy’s Law could tilt the scales of justice away from defendants, disrupting a basic philosophical tenet of the justice system: that a defendant is presumed innocent and entitled to a fair trial.

“The problem with including victims as a separate entity in all of these different stages of the process is that it has potential impacts for the rights of defendants,” Birdsong says.

For starters, having a victim who is entitled to specific, state-sanctioned rights implies that a crime has been committed. But before the state secures a conviction, this crime is merely an allegation.

“You start off with an allegation. It becomes a crime when it’s proven either because the person admits it or because a fact-finder finds it, not because a complainant alleges it,” Rudolf says. “Is there a presumption that a crime has been committed because somebody’s been charged? That’s completely inconsistent with the presumption of innocence.”

What’s more, Rudolf continues, allowing victims to influence when hearings take place might conflict with a defendant’s right to a speedy trial—for example, defendants’ bond hearings could be postponed to a time convenient for their accusers.

“Suppose a third party says, ‘I’m sorry, I’m going on a vacation, I’m going to be out of state for the next couple months, so we can’t proceed with this case,’” Rudolf says. “Does that person have a constitutional right to go take a vacation for two months while a defendant sits in jail?”

And the distinction between the victim and the accused isn’t always clear, Rudolf points out. For example, in cases involving domestic violence or self-defense, both parties may allege that the other violated their rights. Designating one as the “victim” at the outset could bias the case.

To state senator Toby Fitch, a Democrat and former Superior Court judge, the biggest problem with Marsy’s Law—and the reason he voted against it—is that it allows victims to provide emotional testimony at every step of the process. That, he says, runs counter to the fundamental purpose of the justice system: to assess an allegation based on facts.

“The state has to be able to prove its actual situation based on evidence, not based on sympathy or the lack thereof,” he says.

A more prominent role for victims might also lead to harsher punishments, Coleman says, especially in cases where victims are articulate and have the means to represent themselves well. Because Marsy’s Law’s rights are granted “upon request” and not automatically, he says, the victims who take advantage of them will tend to have money and status—“not poor people, who likely are the overwhelming majority of victims of crime in this state.”

That, in turn, could make the justice system’s outcomes even more racially uneven.

“I think often victims who are black will be ignored in the same way they are ignored today,” Coleman says. “I think this is going to be a right that will be exercised and implemented for the benefit of white citizens in North Carolina, and that’s just a sad fact.”

Perhaps the best way to evaluate what Marsy’s Law would mean for North Carolina is to look at its effect on the six states that have voted for it. In some, it turns out, the law has produced unforeseen consequences.

South Dakota, which passed Marsy’s Law in 2016, spent $500,000 on new staff to coordinate with victims, but officials were nonetheless flooded with paperwork and had to log thousands of calls to notify victims. In some cases, offenders lingered in jail when victims couldn’t be notified about bond hearings. The law’s privacy provisions also gave the police license to shield information from the public. Almost overnight, vital facts—including crime locations and victims’ identities—disappeared from incident logs, according to Megan Raposa, editor of the local newspaper The Argus Leader. Later, the cops began withholding the names of homicide victims indefinitely.

“From an open-records standpoint, it has tightened the reins,” Raposa says. “Losing access to some of those specifics just gives us a foggier picture of what’s going on.”

Something similar happened in North Dakota, where police have refused to release the name of a police officer who shot and killed a man and then claimed self-defense, invoking Marsy’s Law to protect the officer’s identity as a crime victim. In Montana, a coalition of newspapers sued over the law, arguing that it would make information on crimes became so inaccessible that the media couldn’t function.

South Dakota lawmakers are now considering asking voters to repeal Marsy’s Law—or at least its “unintended consequences,” as they’ve pledged to maintain protections for victims. If that happens, South Dakota will become the second state to pass Marsy’s Law and then roll it back. In Montana last year, the state Supreme Court overturned it before it could be implemented, with the majority ruling that voters should have considered the sweeping changes Marsy’s Law made to the state constitution separately.

A federal judge struck down the provisions of California’s Marsy’s Law dealing with parole in 2014, but an appellate court reversed that decision two years later. Overall, the law hasn’t created an undue burden on the justice system, according to former federal judge Paul Cassell, a Marsy’s Law advocate.

“The reports from California are that victims are now treated seriously, they have rights in the process, and it’s improved the quality of justice in California rather than in any way detracted from it,” Cassell says in a video on the Marsy’s Law for All website.

Whatever issues emerge after Marsy’s Law passes, North Carolina can deal with them, says Battle, of the N.C. Victim Assistance Network. 

“Certainly there are going to be things that we find have to be worked out,” she says. “There are going to be bugs. There are going to be areas that are going to be improved, potentially some unintended consequences, but that shouldn’t stop us from moving forward. We just have to be committed to fixing whatever doesn’t work—and right now what we have doesn’t work.”

Morey counters that there are better ways to accomplish that goal. Funding technology updates and additional staff could enhance victim notification without compromising the rights of defendants. And routing the money the state plans to spend on increasing the court system’s operational bandwidth directly to victims—via the state’s existing victims’ compensation fund, which paid out about $8.7 million in 2017—would be more effective, she says.

“We need to fully fund the victims’ compensation fund,” Morey says. “We need to get services to victims like mental health. Let’s not grow a bureaucracy and delay the justice system.”

Contact staff writer Leigh Tauss by email at ltauss@indyweek.com, by phone at 919-832-8774, or on Twitter @LeighTauss.