By Anne Teigen
Six states—Florida, Georgia, Kentucky, Nevada, North Carolina and Oklahoma—will offer voters the choice to amend their state’s constitution related to crime victims’ rights.
South Dakota already voted during the primary election to amend the crime victim’s rights amendment voters added in 2016. It passed with 80 percent of the vote.
Interest in providing timely information and giving crime victims a voice in the criminal justice process has grown and the subject has received nationwide attention in the last decade.
Thirty-five states have included some version of victims’ rights in their state constitutions and other states have a Crime Victims Bill of Rights that provides victims of certain crimes specific rights in state statute, rather than in the constitution.
In 2008, California voters passed Proposition 9, a constitutional amendment called the California Victims’ Bill of Rights Act through the initiative process. The measure was dubbed Marsy’s Law after Marsy Nicholas, the sister of Henry Nicholas, president and CEO of Broadcom Corporation, who was stalked and murdered in 1983. One week after her death, her family ran into her accused murderer at the grocery store. They had no idea that he had been released on bail.
Marsy’s Law in California provided specific constitutional rights for crime victims that were more expansive than any current law to date. Specifically, the law grants victims the right to timely notice and the right to be present at all proceedings, the right to review pre-sentence reports, the right to refuse interviews and the right to be heard in proceedings involving release, plea, sentencing, adjudication or parole. Read a full list of the rights in the Marsy’s Law model legislation.
Since California’s passage of Marsy’s Law, Illinois, Ohio, Montana, North Dakota and South Dakota have also adopted some or all provisions of Marsy’s Law. In every state but Illinois, the constitutional amendment was passed by a citizen initiative, which means a petition was signed by a minimum number of registered voters and that enabled citizens to bypass the legislature and place a constitutional amendment on the ballot.
All of the victims’ rights measures up for a vote in November were referred to the ballot by the legislature before going to the voters.
Marsy’s Law has also received criticism, opposition and resistance in many states. In fact, the Montana Supreme Court ruled in November 2017 that the amendment was unconstitutional and “void in its entirety” because it violated the separate-vote rule the electorate should have had to vote on each amendment to the constitution individually, rather than the package deal presented in the ballot initiative. The measure is facing a court challenge in Kentucky.
"Although well intentioned, the process leading to CI-116's passage deprived Montana voters of the ability to consider the many, separate ways it changed Montana's constitution or explain the significant administrative, financial, and compliance burdens its unfunded mandates imposed upon state, county and local governments while jeopardizing the existing rights of everyone involved with the criminal justice system," said one of the petitioners in a press release.
This year, South Dakotans worked to fine-tune the Marsy’s Law that the state placed into its constitution in 2016. The state legislature worked with police and prosecutors to develop a new constitutional amendment that reduces the critical bureaucratic issues the 2016 law created.
Whatever the results may be after Election Day, crime victims’ rights measures accounted for the most criminal justice related ballot measures in 2018 and will continue to be of interest in future elections.
Anne Teigen is a program principal in NCSL's Criminal Justice Program.