Marsy's Law, the California Victims' Bill of Rights Act of 2008, enacted by voters as Proposition 9 through the initiative process in the November 2008 general election, is an amendment to the state's constitution and certain penal code sections. The act protects and expands the legal rights of victims of crime to include 17 rights in the judicial process, including the right to legal standing, protection from the defendant, notification of all court proceedings, and restitution, as well as granting parole boards greater powers to deny inmates parole. Critics allege that the law unconstitutionally restricts defendant's rights by allowing prosecutors to withhold exculpatory evidence under certain circumstances, and harms victims by restricting their rights to discovery, depositions, and interviews.
Passage of this law in California led to the passage of similar laws in Florida, Georgia, Illinois, Kentucky, Nevada, North Carolina, Oklahoma, Ohio, Wisconsin, and Tennessee, and efforts to pass similar laws in Hawaii, Iowa, Montana, Idaho, South Dakota, and Pennsylvania. In November 2017, Montana's similar law was found to be unconstitutional and void in its entirety by the Supreme Court of Montana for violating that state's procedure for amending the Montana Constitution.Montana Association of Counties v. State by and Through Fox, 404 P.3d 733 (Mon. 2017) The Pennsylvania Supreme Court reached the same conclusion as Montana under its own state constitution in 2021.
Background
Marsy Nicholas was the sister of Henry Nicholas, the co-founder and former co-chairman of the board, president and chief executive officer of Broadcom Corporation. In 1983, Marsy, then a senior at UC Santa Barbara, was stalked and murdered by her ex-boyfriend. Her murderer, Kerry Michael Conley, was tried by a Los Angeles jury and sentenced to life in prison with the possibility of parole in 17 years. Although Conley died in prison from a heart infection complicated by diabetes, one year before Marsy's Law passed in November 2008, the Nicholas family attended numerous parole hearings, which bothered them for years.
The Nicholas family was the main organizer of the campaign to pass Marsy's Law, whom former California Governor Pete Wilson called the "driving force" behind the constitutional amendment. In late 2007, Nicholas convened a group, including Wilson, to consider putting a comprehensive victims' rights constitutional amendment on the ballot in California. He recruited legal scholars and former prosecutors to draft, rework and write the final version of the bill. In addition to Nicholas and Wilson, contributors included: Steve Twist, victims' rights legal expert and author of Arizona's Victims' Bill of Rights Douglas Pipes, legal scholar Douglas Beloof, professor at the Lewis & Clark Law School and board member of the National Crime Victims' Law Institute (NCVLI) Meg Garvin, executive director of the NCVLI Steve Ipsen, Los Angeles Deputy District Attorney and then-president of the Los Angeles Association of Deputy District Attorneys Todd Spitzer, then-state assemblyman, former Orange County Assistant District Attorney and Marsy's Law Legal Affairs Director, he was sworn in as District Attorney for Orange County in 2019. Paul G. Cassell, former federal judge, University of Utah law professor Kent Scheidegger, legal director of the Criminal Justice Legal Foundation Thomas Hiltachk, then-legal counsel to then-Governor Arnold Schwarzenegger Charles Fennessey, senior policy consultant to then-State Senator George Runner
In late February 2008, California non-profit corporation Marsy's Law: Justice for Crime Victims proposed Marsy's Law as a way of giving crime victims constitutionally protected rights such as notifications to victims and informing those involved in the criminal justice process of the Marsy's Law victim rights. Voters passed the Constitutional Amendment in November 2008 by a margin of 53.8% to 46.2%, despite being opposed by nearly every major newspaper in the state.
In 2009, Henry Nicholas formed Marsy's Law for All, which has the following objectives:
Ensure that Marsy's Law is enforced throughout California; Help crime victims obtain quality legal representation; Unite the victims' rights movement by providing organizations with media, technology and other support; Pass an Amendment to the United States Constitution to protect the rights of victims nationwide
Impact of Marsy's Law Marsy's Law grants protective rights to an alleged victim of a crime and revokes certain rights of people accused of a crime to defend themselves (see Criticism).
Since its passage, when any alleged victim of crime is contacted by law enforcement, just as the accused are read their Miranda Rights, that victim is immediately informed of their Marsy's Rights and provided with "Marsy's Card", a small foldout containing a full description of each of the 17 Marsy's Rights, which is also available for download in 17 languages on the California Office of the Attorney General website. The California Attorney General has published these rights, which now are utilized by every law enforcement agency in the state. In addition, each of 58 county District Attorney's offices are required to inform alleged victims of these rights at the time a case is filed for criminal prosecution. In 2010, the California Peace Officer Standards and Training (POST) amended its Learning Domain 04 to include Marsy's Law Training in its Basic Police Academy.
Alleged victims now have the right to be heard at every stage of the legal criminal proceedings, which means before the judge makes a sentencing offer in the case. Prior to the passage of Proposition 9, most alleged victims did not address the court until after a conviction or plea. In addition, actions to bar alleged victims from the courtroom under a "motion to exclude witnesses" are now routinely denied. Alleged victims have a right to be present in court and prosecutors are trained to call alleged victims who will be witnesses in the case to testify first so they can remain in the courtroom for the entire trial.
Marsy's Law also gives alleged victims the right to be represented by counsel of their choosing, rather than relying on the prosecutor, who has a legal obligation to represent the people of their jurisdiction, and not the victim. Marsy's Law rights are enforceable and an adverse ruling against a victim in any context involving these rights can be appealed to a higher court by alleged victims through their own counsel or the District Attorney.
Post-conviction, victims' rights have been impacted by the dramatic increase in the length of time between parole hearings. Before Marsy's Law, the maximum parole denial was five years for convicted murderers and two years for all other crimes. Marsy Nicholas' mother, Marcella Leach, suffered a heart attack at the second parole hearing for Marsy's killer and was unable to attend subsequent hearing for many years. Now parole denials can be imposed for 7, 10 and even 15 years. Statistics show that in 2009, 20% or 656 inmates received parole denials of 7 years or more. In 2009, only 3.5% received denials of two years or less.
Citing the impact of Marsy's Law in extending the time California prison inmates must wait between hearings after parole has been denied, a Stanford University study of 32,000 California prisoners serving life sentences with the possibility of parole found the likelihood of parole for a convicted murderer is 6%. The study also found that the lifer population has increased from 8% of inmates in 1990 to 20% in 2010 and that the average number of years served is 20.
In another study on the impact of Marsy's Law on the parole process, UCLA law student Laura L. Richardson found a doubling in the average length of time imposed between parole hearings since California voters passed the Constitutional Amendment in 2008. But while victims may impact parole decisions, her analysis of 211 parole hearings failed to reveal an increase in victim participation in the parole process.
The California Supreme Court has said it will review two cases, In re Vicks and In re Russo, which address whether the parole impact of Marsy's Law is unconstitutional. In Vicks, the state Court of Appeal, Fourth Appellate District, Division One found that the risk of increased incarceration resulting from longer parole denials under Marsy's Law violated ex post facto principles if applied to prisoners sentenced before the law was passed. However, in Russo, a different panel from the same court ruled that the ability of a prisoner who had been denied parole to petition to advance the date of the next parole hearing protected Marsy's Law from an ex post facto challenge.
Similar laws in other states The passage of this law in California has led to efforts in other states to pass similar laws. In Illinois, voters passed an amendment to the state constitution, called Marsy's Law for Illinois. In Ohio voters passed an amendment called the Ohio Crime Victims Bill of Rights (Marsy's Law). In April 2020, Wisconsin voters approved a version for their state's constitution. There are efforts to introduce similar Marsy's Laws in Georgia, Hawaii, Montana, Nevada, South Dakota, Florida, Maine, and North Carolina. Voters in Pennsylvania approved a Marsy's Law amendment to the state constitution in November 2019, but the Pennsylvania Supreme Court enjoined certification of the result. In December 2021, the court then held that the provision's inclusion of multiple essentially unrelated changes violated the state constitution's "single subject" limitation for each amendment.
Overview of the Constitutional Amendment Marsy's Law amended the state constitution and various state laws to (1) expand the legal rights of crime victims and the payment of restitution by criminal offenders, (2) restrict the early release of inmates, and (3) change the procedures for granting and revoking parole.
Expansion of the rights of victims and restitution Background In June 1982, California voters approved Proposition 8, known as the Victims Bill of Rights.
Among other changes, the proposition amended the Constitution and various state laws to grant crime victims the right to be notified of, to attend, and to state their views at, sentencing and parole hearings. Other separately enacted laws have created other rights for crime victims, including the opportunity for a victim to obtain a judicial order of protection from harassment by a criminal defendant.
Proposition 8 established the right of crime victims to obtain restitution from any person who committed the crime that caused them to suffer a loss. Restitution often involves replacement of stolen or damaged property or reimbursement of costs that the victim incurred as a result of the crime. A court is required under current state law to order full restitution unless it finds compelling and extraordinary reasons not to do so.
Sometimes, however, judges do not order restitution. Proposition 8 also established a right to "safe, secure and peaceful" schools for students and staff of primary, elementary, junior high, and senior high schools.
Changes made by this measure This measure requires that, without exception, restitution be ordered from offenders who have been convicted, in every case in which a victim suffers a loss. The measure also requires that any funds collected by a court or law enforcement agencies from a person ordered to pay restitution would go to pay that restitution first, in effect prioritizing those payments over other fines and obligations an offender may legally owe. The victim also is entitled to be compensated for legal fees in hiring counsel under Marsy's Law on the issues relating to the securing of restitution.
Notification and participation of victims in criminal justice proceedings