North Carolina voters could find a simple and enticing question on next year’s ballot: Do you support a constitutional amendment to ensure “absolute basic rights” for crime victims?
The proposal known as “Marsy’s Law” passed the N.C. House in a landslide and is now in a Senate committee. Last week proponents released a series of digital ads designed to build popular support for the measure, which is part of a national campaign.
The House version of the law spells out victims’ rights. That includes the right to “reasonable and timely” notice of criminal proceedings and to be present at any proceeding involving a defendant’s plea, sentencing, parole or release.
But critics continue to question the need for the law, particularly in the constitution.
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“I certainly see why Marsy’s Laws have a superficial appeal, but they represent extraordinary problems,” said Barry Pollack, president of the National Association of Criminal Defense Lawyers. “It really turns the presumption of innocence upside down by designating someone as a victim … before it’s been established that the defendant has committed any crime.”
He said most Marsy’s Laws “give rights to ‘victims’ before there has been any conclusion about whether the accused has committed a crime.”
North Carolina is one of nine states with efforts underway to enshrine Marsy’s Law in state constitutions. Another five states already have.
The law is named after Marsy Nicholas, a California college student killed by her boyfriend in 1983. The campaign is led by her brother, Henry Nicholas III, a billionaire tech entrepreneur who has spent millions to pass the laws across the country. His ultimate goal: a victims amendment in the U.S. Constitution.
“The whole idea that someone who has a lot of money can come into a state and heavily influence what our laws are is concerning,” said Peg Dorer, director of the NC Conference of District Attorneys, which is neutral on the current bill.
Backers of the N.C. measure say it would elevate the rights of people who too often find themselves entangled in, or forgotten by a complicated system.
“Marsy’s Law is a movement … to provide victims of crime with the same fundamental rights that the defendants and perpetrators of those crimes now have,” former N.C. Supreme Court Justice Bob Orr said in a video for the bill. “Marsy’s Law is providing rights to victims of crime to have a voice in the criminal justice system, to be heard, to be informed, and to have a say in what happens.”
“When is it not important to put victims’ rights front and center, whether it’s statutorily or in the constitution?” said Chris Sinclair, a Raleigh political strategist running the state campaign.
A ‘sea change’
Proponents spent months working with groups such as the district attorneys to address their concerns. The original version, for example, would have allowed victims to opt out of providing information to prosecutors or defense attorneys. That language was dropped at the urging of trial lawyers.
But critics say the law and others like it are still far-reaching.
“This is a sea change in the adversary system as we know it,” said Mark Rabil, a Wake Forest University law professor and director of the school’s Innocence and Justice Clinic. “Nobody’s really thinking about the change that it fundamentally makes to the criminal justice system in the United States.”
Rabil said the system is based on two parties: the government and the accused, the prosecution and the defense. By essentially making victims a third party, the state runs the risk of complicating the process even more and possibly tilting the system against defendants. “I believe we have the best system of justice in the world,” he said. “If we make victims a party, it’s going to turn into a three-ring circus.”
Former Supreme Court Chief Justice Burley Mitchell said victims’ rights are already protected in N.C. law.
“The constitution … is supposed to set broad general policies and aspirations,” Mitchell said. “It’s not to get down into the nitty gritty refinements of all public policy.”
Other critics, including Democratic Rep. Marcia Morey, a former prosecutor and District Court judge, believes the money being spent to pass Marsy’s Laws could be better spent helping victims get to court, make up for lost wages and get needed counseling.
Nicholas, the billionaire behind the drive, spent a reported $4.9 million of the $5.1 million raised to support the 2008 California proposition. He has spent millions in other states as well. Last year he spent $2.5 million on Marsy’s Law in North Dakota.
In 2008, he was the subject of two federal indictments, one for securities fraud and one for drug crimes. All charges were dropped in 2010. Dorer of the DA’s group said his background “gave us a lot of heartburn.”
“The legislators felt they needed to do this,” she said, “so we worked with the legislators to get the language where we could make it more palatable within our criminal justice system and get the resources. …. and make sure we can comply with whatever policy is passed.”
Staff researcher Maria David contributed.