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This August 2024 report outlines the ways in which Marsy’s Law undermines fundamental due process rights. Read the news release.
│ What Marsy’s Law Does │ Definition of Victimhood │ Impact on Defense │ Police and Government Abuse │ Juvenile Justice │ Pretrial Detention │ Sentencing │ Parole │ Collateral Consequences │ Public Safety │ Administrative Impact and Cost │ Opposition │ Additional Resources │
What Does Marsy’s Law do?
Expanded definition of victim and scope of victimhood
A victim becomes a victim at the time of the alleged offense. The vagueness of the language means that any entity that is a victim of any kind of crime is afforded the rights under Marsy’s Law.
Right to Notification
Victims have the right to be notified of all proceedings that are relevant to the case of their victimization, including bond hearings, competency hearings, court trials, parole hearings, and release dates, among others. The expansion of notification prolongs pre-trial detention and other forms of incarceration.
Right to be Heard
Marsy’s Law expands the right to confer with prosecutors prior to any disposition of the case.
Right to Privacy
The model amendment endorsed by Marsy’s Law for All, LLC states: “The right to privacy…includes the right to refuse an interview, deposition or other discovery request and to set reasonable conditions on the conduct of any such interaction to which the victim consents.”
Right to Restitution
Under Marsy’s Law, victims have the right to timely restitution that is not tied to the financial abilities of the defendant.
What are the Impacts?
Victim’s rights are placed above defendants
Marsy’s Law has expanded the definition of a victim, expanded the range of crimes that are subject to victims’ rights, and added new rights or expansions of those rights. Marsy’s Law improperly seeks to give equal weight to victims’ and defendants’ rights. Marsy’s Law violates defendants’ due process rights, increases the potential for wrongful convictions, and undermines the principles of the U.S. legal system.
A victim becomes victim before accused is found guilty of any crime
Rights attach “at the point of victimization,” which suggests they are self-executing. Marsy’s Law upends the foundation of the criminal legal system, as an accused person who should be presumed innocent until proven guilty is now simply presumed guilty.
Access to an effective defense and critical defense resources are hampered
The victim can refuse any pre-trial interviews or depositions and has the right to refuse disclosure of relevant documents, including medical and psychological records that establish injury as a result of the victimization, and other exculpatory evidence. Without this evidence, defense attorneys are not able to fully investigate the case.
When defenders lack sufficient resources and time for an effective defense, the risk of wrongful conviction increases.
Potential for abuse and police misconduct
The definition of a victim under Marsy’s Law is too broad, meaning too many parties can be considered a victim. The vagueness and broadness of the definition of victim has led to police and municipalities claiming victimhood.
Police in multiple states have used Marsy’s Law to conceal their identity from the public in use of force incidents. Marsy’s Law is being used extensively in some states for this purpose in both lethal and non-lethal use of force incidents.
Marsy’s Law includes the right to “full and timely” restitution, leading to municipalities and corporations asserting victimhood for the purposes of restitution and an expansion of the harms for which restitution is requested.
Harm to juvenile defendants
Marsy’s Law in some states allows for the victim to request defendant records, either disposition information or information related to the final judgement. The troubling implications of Marsy’s Law for youth in the criminal legal system, including a risk of a loss of confidentiality of records pertaining to juvenile defendants, have not been fully reconciled in impacted states. Confidentiality of records throughout the process is vital to the youth justice system.
Under Marsy’s Law, victims have the right to timely restitution that is not tied to the financial abilities of the defendant. Oftentimes youth defendants are not eligible to work. In these cases, young people earn restitution through community service. Due to the limited number of hours they can work, timely restitution is extremely difficult.
Prolonged pretrial detention
The expansion of notification has prolonged pre-trial detention and other forms of incarceration. Having to notify every victim of every case at every step of the process severely delays proceedings and keeps non-convicted citizens unnecessarily detained for sometimes lengthy periods of time. Marsy’s Law has increased the length of pretrial detention as overburdened prosecutors may fail to notify victims, or are unable to locate them, in a timely manner.
Increases unjust sentencing practices
Marsy’s Law expands the right to confer with prosecutors prior to any disposition of the case. The right to be heard in plea agreements under Marsy’s Law creates unfulfilled expectations of “justice” for victims who adamantly advocate for trials in cases with uncompelling evidence. It places victims desired case outcome above outcomes with public benefits like rehabilitation and fair sentencing. Victims may demand harsher judgements, reducing defense attorneys’ ability to work with the State to secure the best options for their clients, including alternatives to incarceration.
Impeded parole process
The right to be heard increases the time spent incarcerated during the parole process. One researcher looked at the impact of victim impact statements on the parole process in the context of California’s Marsy’s Law. She found the implementation of Marsy’s Law doubled the time in between parole hearings from 2.5 to 5 years, effectively increasing time incarcerated.
Increased collateral consequences of convictions
Marsy’s Law has exacerbated the collateral consequences of incarceration by delaying the timely release of incarcerated individuals. Because of the scope of Marsy’s Law, these consequences extend to individuals who are merely accused and still presumed innocent.
Without considering their ability to pay, restitution has become punitive for defendants, has impacted the financial health of their families, and presents barriers to successful re-entry after serving their sentences. These concerns extend to youth in the criminal legal system as well. Restitution orders can result in a client’s probation revocation for failure to pay the restitution.
In some states, it has expanded the prosecutors’ role to appealing the restitution decisions of trial courts on behalf of victims.
When restitution is considered part of a sentence, justice-impacted individuals must pay restitution to obtain their full rights back.
Harm to public safety
The right of the victim to refuse to participate in interviews and discovery delays the resolution of cases. The right to be heard has posed substantial challenges to the plea negotiation process, delaying or thwarting plea deals that are in the public’s interest.
Marsy’s Law provides more opportunities for due process violations ending in wrongful convictions, harming the measure’s intended beneficiaries. Not only could others be victimized, but the victims may have to endure the legal system all over again when and if the State decides to prosecute the correct suspect.
Changes to restitution under Marsy’s Law have the potential to exacerbate the risk of recidivism associated with fines and fees.
The costs of Marsy’s Law may come at the expense of resources that could be allocated towards community-based crime prevention initiatives.
Marsy’s Law threatens public safety by preventing the release of crime information to the public and shielding the identities of law enforcement who have engaged in misconduct. Releasing information about crime serves the public’s interest. Understanding where crime occurs can impact individuals’ safety and communities’ resource allocation and efforts. An accurate understanding of where victimization is occurring and who is involved is necessary for community safety and the development and implementation of effective prevention and intervention programs that reduce violence.
Comes at cost to taxpayers, diversion of resources, and loss of efficiency
Preliminary cost analyses and fiscal impact reports in several states raise concerns that Marsy’s Law may be costly to implement. Costs include, but are not limited to, additional administrative personnel and records management positions, prosecutors to balance the increase in workload associated with case processing, and victim advocates embedded in both law enforcement and local prosecutor offices. Some states report that the expansion of notification requirements to all offenses likely requires a substantial increase in resources of personnel and/or notification systems.
Who else opposes Marsy’s Law?
Outside of defense attorneys and civil rights groups, a variety of stakeholders have voiced opposition including law enforcement chiefs and sheriffs, victim advocates, and local and state representatives.
What can be done?
While efforts have been made to revise Marsy’s Law to address some of the concerns, there is no set of discrete and direct policy recommendations that can be provided to mitigate the harms of Marsy’s Law. Put quite simply, the existence of Marsy’s Law is too damaging to defendants’ due process and the underlying principles of the U.S. legal system. As such, NACDL opposes the adoption of Marsy’s Law, and urges the public and elected officials at all levels of government to oppose Marsy’s Law. States that have already adopted Marsy’s Law should conduct cost analysis to determine the fiscal impact of the provisions.
