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Crime victims’ rights are up for a vote in NC – but they come with a cost

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North Carolina constitutional amendments

Coverage from The Charlotte Observer, The News & Observer and The Herald-Sun of the constitutional amendments you’ll vote on in the November 2018 elections.

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Voters will soon decide if crime victims should get more notifications about court proceedings and more chances to speak out in court.

But critics says the constitutional amendment known as “Marsy’s Law” is unnecessary and could create slowdowns and a financial burden on the court system.

Marsy’s Law is backed by a $5 million campaign led by a California billionaire, and it’s on the ballot in five other states this year. In North Carolina, it would expand a 1996 victims’ rights constitutional amendment to add more notification and hearing opportunities for crime victims, and apply the rights to a broader array of crimes.

The proposal isn’t labeled as Marsy’s Law on ballots, where the question will ask voters if they favor an amendment “to strengthen protections for victims of crime; to establish certain absolute basic rights for victims; and to ensure the enforcement of these rights.”

The state constitution already requires victims to be notified about all proceedings in their case and the opportunity to be heard in court — typically during sentencing hearings. It also requires notifications when someone is released from prison. Those requirements apply in cases involving domestic violence and major felonies.

Marsy’s Law would expand those requirements to violent misdemeanors, felony property crimes and some juvenile cases. Victims would have more chances to speak out in court, including at hearings setting bail conditions, and they’d have the right to be present at all court proceedings. The amendment would also guarantee that victims granted a court-ordered restitution payment can receive it “in a timely manner.”

Colon Willoughby, the former Wake County district attorney who’s serving as a lobbyist for the Marsy’s Law organization, says the existing amendment lacks an enforcement mechanism — victims have no recourse if their rights are violated.

“The new amendment will specifically say you can petition the court to seek to have an enforcement of those rights,” he said.

Former Wake County District Attorney Colon Willoughby talks with a News & Observer reporter. tlong@newsobserver.com

But others argue that the existing victims’ rights amendment is working fine, and the new proposal would be costly and unnecessary.

“We certainly believe that crime victims should be supported, but Marsy’s Law is really a one-size-fits-all, outsourced approach for how to support crime victims,” said Susanna Birdsong of the ACLU of North Carolina, which is urging voters to reject the amendment. She says the change “leaves no legislative discretion to fill in the gaps or complete the picture,” tying the hands of state leaders from tweaking the process when needed.

Birdsong points to a number of uncertainties surrounding the amendment: How much would it cost overworked prosecutors’ offices? Who’s responsible for funding additional staff and other resources to notify and work with crime victims? The legislature’s nonpartisan Fiscal Research Division estimates Marsy’s Law could cost at least $11 million a year to fund 150 victim services coordinator positions that are currently funded by a temporary grant. But the division’s memo notes that the amendment “may eventually lead to other costs to the court system or to the Division of Juvenile Justice in the Department of Public Safety,” and analysts “cannot estimate these costs at this time.”

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Willoughby says the costs could be contained if the state invests in technology to provide court system notifications by email or text message. “The one big shortcoming in our system is we don’t have a very robust automated notification system,” he said. “It’s very expensive to pay somebody to sit and make telephone calls.”

Birdsong and other opponents also worry Marsy’s Law could slow down court proceedings: If prosecutors have to track down more victims and work around their schedules, would hearings get delayed? “What does that do to weaken due process rights, weaken the right to a speedy trial if you’re waiting for victims to be heard at new intervals?” Birdsong said.

How it’s worked in other states

Other states have had mixed results with Marsy’s Law.

In Illinois, fears about a slower legal process proved unfounded after the amendment passed in 2014, according to Lee Roupas, president of the Illinois Prosecutors Bar Association. “We haven’t seen a slowdown in court proceedings as a result of the victim notification procedures,” he said.

But Illinois prosecutors are spending more time contacting crime victims. “There’s definitely an increase in administrative burden as far as notification goes,” Roupas said. “There is positive feedback from the sense that it does empower the victims and guarantee the victim communication with prosecutors.”

The changes proved more problematic in South Dakota, where state leaders had to hold another ballot referendum earlier this year to tweak their victims’ rights amendment. According to the Sioux Falls Argus Leader, the state’s four biggest counties had to spend $500,000 on the new requirements in the first year, and defense attorneys told the newspaper their clients spent longer in jail due to delayed bond hearings and plea deals.

Chris Sinclair, a political consultant working on the Marsy’s Law campaign, said North Carolinians shouldn’t look to South Dakota’s example because that state lacked the infrastructure needed to implement the changes. He argues that Illinois provides a better comparison. “What (amendment supporters) recognize is that every state’s different,” Sinclair said.

Billionaire backing, popular support

Sinclair, a veteran Republican strategist, is organizing the pro-amendment campaign with longtime Democratic strategist Brad Crone. The organization has employed eight registered lobbyists and has five full-time field organizers working with volunteers across the state.

TV and digital ads feature crime victims describing their struggles navigating the criminal justice system without adequate notification. One ad depicts a hypothetical scenario: A woman encountering her attacker in a parking garage, unaware he’d been allowed to go free.

Marsy’s Law is the only one of the six constitutional amendments on this year’s ballot that has an organized campaign to drum up support. And so far, it appears to be successful: A recent Spectrum News/SurveyUSA poll found that it’s the most popular of the six proposals, with 75 percent of those surveyed planning to vote yes, while only 10 percent were opposed and 15 percent were unsure.

The effort is largely bankrolled by Henry Nicholas, the billionaire founder of the tech company Broadcom.

In this May 30, 2015, file photo, Henry T. Nicholas III talks during the Nicholas Academic Center's 2015 Graduation ceremony at the Disneyland Hotel in Anaheim, Calif. After his sister was murdered, Nichols III spent millions to enshrine a so-called bill of rights for crime victims into California's constitution. AP Images for Nicholas Academic Centers, File Eric Reed

Marsy’s Law is named for Nicholas’ sister, who was murdered in 1983. Her family wasn’t informed that her alleged killer had been released from jail, and they later saw him in the grocery store.

“If any good can come of something this horrible — the loss of my sister and the losses of other families of crime victims — it is that these violent acts served as a catalyst for change,” Nicholas says on the Marsy’s Law website.

Nicholas is currently experiencing another side of the criminal justice system. He was arrested in August in Las Vegas after police say they found heroin, cocaine, meth and ecstasy in his hotel room, the Los Angeles Times reported. Previous drug charges against Nicholas were dismissed, according to the newspaper.

Sinclair said he can’t comment on the charges against Nicholas, but he stressed that “from the standpoint of the campaign, this has never been about one person.”

Taking sides

The Marsy’s Law campaign is touting bipartisan support in a year when the political parties are divided over the proposed amendments: The N.C. Republican Party has endorsed all six, while the N.C. Democratic Party is urging voters to reject them all as a GOP effort to “streamroll our constitution.” But when the measure passed the legislature in June, only 10 Democrats voted no.

Some of the Democrats who voted yes, however, now say they share the concerns of amendment opponents. “My yes vote was to let people vote on it,” said Sen. Floyd McKissick, a Durham Democrat and attorney who was once the victim of a violent robbery. “There are more unknowns than knowns about what this will look like in practice, and that’s the overarching concern. I feel that those victims’ rights that exist today are reasonable and adequate.”

Rep. Robert Reives, a Lee County Democrat and an attorney, said he voted for the “idea” behind Marsy’s Law but thinks that improvements to victims’ rights procedures would be better made through legislation — not by changing the constitution.

“If it turns out there needs to be a major tweak, you’ve got to go back to the general public and start all over again,” he said.

Rep. Joe John, a Wake County Democrat and a retired judge, said his vote in support “basically reflected my observations over the years that crime victims very often were treated somewhat poorly by the way the court system operated.” He says he’s heard strong arguments on both sides of the Marsy’s Law debate.

Other key players in the legal community haven’t taken sides. The N.C. Bar Association has no position on the issue, its spokesman said.

The N.C. Conference of District Attorneys hasn’t issued any formal statement, but director Peg Dorer said that while “the DAs have consistently supported victims of crime throughout our state,” they’re concerned about the expansion of victims’ rights to property crimes like burglary and theft. “This mandate will stretch the DA office very thin in providing services to victims and may well take attention away from those victims of personal crimes who need our assistance,” Dorer said in an email. “We have explained that to the General Assembly and ask for assistance with resources.”

Willoughby, a Democrat who stepped down as Wake DA in 2014, said he thinks many prosecutors are already doing a lot to help victims. “As a general rule, prosecutors around the state have been providing rights, and they’re providing victims with more rights than they’re required to,” he said.

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