Marsy's Law

 

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,^[10] Marsy, then a senior at UC Santa Barbara, was stalked and murdered by her ex-boyfriend. Her murderer, Kerry Michael Conley,^[11] 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,^[12] one year before Marsy's Law passed in November 2008, the Nicholas family attended numerous parole hearings, which bothered them for years.^[13]

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.^[14] 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, noted victims' rights legal expert and author of Arizona's Victims' Bill of Rights
• Douglas Pipes, recognized 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^[15]

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.^[16] 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.^[15]

In 2009, Henry Nicholas formed Marsy's Law for All,^[17] 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

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 his or her 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.^[18] 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.^[19] 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.^[20]

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 his or her 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.^[21] 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.^[22]

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.^[23]

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.^[24]

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.^[25]

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.^[26] In Ohio voters passed an amendment called the Ohio Crime Victims Bill of Rights (Marsy's Law).^{[citation needed]} In April 2020, Wisconsin voters approved a version for their state's constitution.^[27] There are efforts to introduce similar Marsy's Laws in Georgia,^[28] Hawaii,^[29] Montana,^[30] Nevada,^[31] South Dakota,^[32] Florida,^[33] Maine,^[34] and North Carolina.^[35] 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.^[36]

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. These changes are discussed in more detail below.^[37]

In June 1982, California voters approved Proposition 8, known as the Victims Bill of Rights.^[38]

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.^[38]

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.

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.^[39]

As noted above, Proposition 8 established a legal right for crime victims to be notified of, to attend, and to state their views at, sentencing and parole hearings. This measure expands these legal rights to include all public criminal proceedings, including the release from custody of offenders after their arrest, but before trial. In addition, victims are given the constitutional right to participate in other aspects of the criminal justice process, such as conferring with prosecutors on the charges filed and arguing for increased charges. Also, law enforcement and criminal prosecution agencies are required to provide victims with specified information, including details on victim's rights.^[40]

This measure expands the legal rights of crime victims in various other ways, including the following:

• Crime victims and their families have a state constitutional right to (1) prevent the release of their confidential information or records to criminal defendants, (2) refuse to be interviewed or provide pretrial testimony or other evidence requested on behalf of a criminal defendant, (3) protection from harm from individuals accused of committing crimes against them, which includes informing the judge of safety concerns and seeking protective orders, (4) the return of property no longer needed as evidence in criminal proceedings, and (5) "finality" in criminal proceedings in which they are involved and the right to due process and a speedy trial. Some of these rights previously existed in statute.^[2]
• The Constitution was changed to specify that the safety of a crime victim must be taken into consideration by judges in setting bail for persons arrested for crimes.
• The measure states that the right to safe schools includes community colleges, colleges, and universities.^[2]

The state operates 33 state prisons and other facilities that had a combined adult inmate population of about 171,000 as of May 2008. The costs to operate the California Department of Corrections and Rehabilitation (CDCR) in 2008 are estimated to be approximately $10 billion. The average annual cost to incarcerate an inmate is estimated to be about $46,000. The state prison system is currently experiencing overcrowding because there are not enough permanent beds available for all inmates. As a result, gymnasiums and other rooms in state prisons have been converted to house some inmates.

Both the state Legislature and the courts have been considering various proposals that would reduce overcrowding, including the early release of inmates from state prison. At the time this analysis was prepared, none of these proposals had been adopted. State prison populations are also affected by credits granted to prisoners. These credits, which can be awarded for good behavior or participation in specific programs, reduce the amount of time a prisoner must serve before release.^[41] Collectively, the state's 58 counties spend over $2.4 billion on county jails, which have a population in excess of 80,000. There are currently 20 counties where an inmate population cap has been imposed by the federal courts and an additional 12 counties with a self-imposed population cap. In counties with such population caps, inmates are sometimes released early to comply with the limit imposed by the cap. However, some sheriffs also use alternative methods of reducing jail populations, such as confining inmates to home detention with Global Positioning System (GPS) devices.^[42]

This measure amends the Constitution to require that criminal sentences imposed by the courts be carried out in compliance with the courts' sentencing orders and that such sentences shall not be "substantially diminished" by early release policies to alleviate overcrowding in prison or jail facilities. The measure directs that sufficient funding be provided by the Legislature or county boards of supervisors to house inmates for the full terms of their sentences, except for statutorily authorized credits which reduce those sentences.

The Board of Parole Hearings conducts two different types of proceedings relating to parole. First, before CDCR releases an individual who has been sentenced to life in prison with the possibility of parole, the inmate must go before the board for a parole consideration hearing. Second, the board has authority to return to state prison for up to a year an individual who has been released on parole but who subsequently commits a parole violation. (Such a process is referred to as parole revocation.) A federal court order requires the state to provide legal counsel to parolees, including assistance at hearings related to parole revocation charges.^[43]

This measure changed the procedures to be followed by the board when it considers the release from prison of inmates with a life sentence. Specifically:

• Previously, individuals whom the board did not release following their parole consideration hearing generally waited between one and five years for another parole consideration hearing. This measure extended the time before the next hearing to between 3 and 15 years, as determined by the board. However, inmates are able to periodically request that the board advance the hearing date.
• Crime victims are eligible to receive earlier notification in advance of parole consideration hearings. They now receive 90 days advance notice, instead of the prior 30 days.
• Previously, victims were able to attend and testify at parole consideration hearings with either their next of kin and up to two members of their immediate family, or two representatives. The measure removed the limit on the number of family members, and allows victim representatives to attend and testify at the hearing without regard to whether members of the victim's family were present.
• Those in attendance at parole consideration hearings are eligible to receive a transcript of the proceedings. This allows the victim to document the level of remorse and rehabilitation exhibited by the inmate in order to make the parole board aware at subsequent hearings if the inmates' behavior fails to demonstrate remorse or other failure to take personal responsibility for his crime.
• General Parole Revocation Procedures. This measure changed the board's parole revocation procedures for offenders after they have been paroled from prison. Under a federal court order in a case known as Valdivia v. Schwarzenegger, parolees were previously entitled to a hearing within 10 business days after being charged with violation of their parole to determine if there was probable cause to detain them until their revocation charges were resolved. The measure extended the deadline for this hearing to 15 days. The prior order also required that parolees arrested for parole violations have a hearing to resolve the revocation charges within 35 days. This measure extended this timeline to 45 days. It also provides for the appointment of legal counsel to parolees facing revocation charges only if the board determines, on a case-by-case basis, that the parolee is indigent because of the complexity of the matter or because of the parolee's mental or educational incapacity, the parolee appears incapable of speaking effectively in his or her defense. Because this measure does not provide for counsel at all parole revocation hearings, and because the measure does not provide counsel for parolees who are not indigent, a federal judge held it was in conflict with the Valdivia court order, which requires that all parolees be provided legal counsel. However, in March 2010, the Federal Ninth Circuit Court of Appeals rejected the lower court ruling and directed it to reconcile its ruling with Proposition 9.^[44]

Marsy's law is one of several determining factors when denying an incarcerated individual parole suitability. If an individual is found unsuitable for parole, the board commissioners determine the incarcerated individual's denial length. Studies indicate a growing relationship between Marsy's Law and the next date of an incarcerated individual's suitability hearing. The board issued 5-year denials for only 18% of parole suitability cases presented to them before Marsy's Law. After Marsy's law, 57% of incarcerated individuals received a denial length longer than 5 years.^[45] Statistics reveal that 70% of incarcerated individuals were denied parole in 2015.^[46] Public safety concerns can be cited for the increase in denial lengths for incarcerated individuals.^[47] An incarcerated individual may receive a shorter denial if commissioners are presented with evidence that reveals the incarcerated individual's potential suitability for parole. From all suitability hearings presented to the board, 75% of cases have received a denial length of 3 years or more.^[48] Granting outcomes result in less parole and more lengthy denial with Marsy's Law.

The ACLU has criticized Marsy's Law for undermining due process,^[49] for being poorly drafted, and for being a threat to existing constitutional rights. The basis of the criticism is that equating victims' rights to the rights of the accused is a fallacy that ignores the very different purposes these two sets of rights serve.

This is not because defendants' rights are valued more by society than victims' rights. Defendants' rights are rights against the state and apply only when the state is attempting to deprive the accused – not the victim – of life, liberty, or property. They serve as essential checks against government abuse, preventing the government from arresting and imprisoning anyone, for any reason, at any time.

Victims' rights are not rights against the state, but against another individual. The approach taken by Marsy's Law includes rights that could actually strengthen the state's hand against a defendant, undermining a bedrock principle of the U.S. legal system — the presumption of innocence. Parallels have been drawn to Title IX cases on campuses.

Marsy's Law has been used by prosecutors to withhold exculpatory evidence against police in states including:

Traditionally, a prosecutor is required to provide a defendant with evidence that could show innocence (exculpatory evidence). If the prosecution does not provide it, it may require a new trial.^[50] Under Marsy's Law, however, a victim would be able to refuse to provide that evidence to the defendant, the court, and the jury.^[51]

Criminal defense attorney Casey Hoff has criticized this loss of rights of an accused person who is still presumed innocent:^[52]

The United States Constitution guarantees every person accused of a crime the right to be confronted with the witnesses against him or her and to obtain witnesses in his or her favor. Allowing alleged victims to refuse to provide evidence and discovery to the accused is, as we have learned throughout our history, the way innocent people get convicted of crimes and wrongfully imprisoned.

Marsy's law was enacted in order to expand and assert victim rights and since the introduction of Marsy's Law, the number of prisoners serving life sentences has seen an increase. The United States as of 2021 currently has a lifer population of 203,000.^[53] Ryan S. Appleby criticizes the consequences of Marsy's Law and the effects of demographics which place life-sentenced individuals at less of an advantage than those who voted for Marsy's Law. The life-serving individuals lacked the ability to counter the propositions of Marsy's Law on the lifer community.^[54] Marsy's law has altered the rights and processes of incarcerated individuals further.^[55]

Crime survivors are not parole suitability experts. Research conducted criticizes the factored weight of victim testimony during parole suitability hearings and grant outcomes. An incarcerated individual's parole suitability is affected by the crime victim's presence. The research indicates that parole denial will be a result of increased participation of crime survivors during suitability hearings.^[56] A prisoner with low recidivism is faced with a board that decides parole suitability is not present due to victim participation.^[57] Incarcerated individuals express the difficulty to reveal their efforts to re-enter their communities when victim participation decreases their chances for parole granting outcomes.^[58] Criticisms raised the question of the fairness to the rights and processes of incarcerated individuals during their suitability hearings.

The Los Angeles Times encouraged a "no" vote on 9, saying, "If the concern is protection of families from further victimization, as proponents claim, that goal can be met without granting families a new and inappropriate role in prosecutions."^[59]

Other editorial boards opposed:

• The Eureka Reporter^[87]

• California Office of the Attorney General, Marsy's Law
• California Department of Corrections and Rehabilitation (CDCR), Victim's Bill of Rights Act of 2008: Marsy's Law
• Ballotpedia, Proposition 9
• Full text of Proposition 9