Marsy's Law on the Nov. 5 ballot in Pennsylvania

On Nov. 5, Pennsylvanians will vote on a ballot referendum known as Marsy’s Law, which proponents deem a crime-victim rights amendment to the Pennsylvania state constitution, reported the Pittsburgh City Paper. The referendum states the amendment would “grant certain rights to crime victims, including to be treated with fairness, respect, and dignity.”

In 1983, 23-year-old Marsalee Ann Nicholas, who went by Marsy, was murdered in Malibu by Kerry Conley, her ex-boyfriend. Conley was convicted of second-degree murder in 1985 and he died in prison in 2007. But in the period between his charges and his conviction, Conley was free after posting a $100,000 bail.

Marsy’s Law for All, the foundation that has the goal to get Marsy’s Law passed in all 50 states and eventually in the U.S. Constitution, was started in 2009 by Henry Nicholas, Marsy’s brother.

This funding dynamic has basically always been the case for Marsy’s Law. According to League of Women Voters of Pennsylvania, more than $102 million has been spent advocating other states to pass the law, and Nicholas has contributed 97 percent.

Nevada passed Marsy’s Law in 2018, as did Florida, Georgia, Kentucky, North Carolina and Oklahoma. According to campaign finance reports, Nicholas, either personally or through his foundation, funded virtually all of the cash for these efforts.

This is one of the reasons the League of Women Voters of Pennsylvania is skeptical of Marsy’s law, as well as concerns that the law is just repeating protections that already exists and that, if passed, victims could refuse to be interviewed or to turn over pertinent evidence or testimony.

The Pennsylvania ballot questions states in full: “Shall the Pennsylvania Constitution be amended to grant certain rights to crime victims, including to be treated with fairness, respect and dignity; considering their safety in bail proceedings; timely notice and opportunity to take part in public proceedings; reasonable protection from the accused; right to refuse discovery requests made by the accused; restitution and return of property; proceedings free from delay; and to be informed of these rights, so they can enforce them?”

Both the ACLU of Pennsylvania and the League of Women Voters of Pennsylvania brought a suit against Marsy’s Law on Oct. 11, alleging that the ballot initiative is too broad and should be instead broken up into two or three separate questions.

In the commonwealth, the Pennsylvania Crime Victims Act already affords victim’s protections and established rules that crime victims have to be notified about arrests and legal actions against the victim’s offender, but Marsy’s Law would extend some of those rules to the victim’s family members too.

According to WHYY, the ballot referendum doesn’t change very much about the state’s existing crime-victims protections laws, and really just codifies those laws into the state constitution, making it easier for the victim's and victim’s families to sue if those rights aren’t upheld.

However, Marsy’s law does make some significant changes to rules concerning the accused. One of the more contentious parts of the proposed amendment would allow victims to “refuse an interview, deposition, or other discovery request” made by the accused or the accused’s lawyers.

This is one of the main reasons the ACLU of Pennsylvania opposes Marsy’s Law. The ACLU says these changes could shift the scales too much in favor of the state, which is responsible for prosecuting the accused in criminal cases.

On paper, Marsy’s Law appears like an amendment worthy of approval, but opposition has always existed. Several newspaper editorials have been questioning whether Marsy’s law is necessary, including the Palm Beach Post in Florida and Indy Week in North Carolina.

North Dakota passed Marsy’s Law in 2016, but in 2018, North Dakota state Sen. David Hogue said the constitutional amendment didn’t “provide any meaningful protections for victims that isn’t otherwise in our statute,” according to the Grand Forks Herald. He said there were some negative consequences of Marsy’s Law, but added they were manageable but come with “obvious costs.”

Jack McDonald of the North Dakota Newspaper Association said one potential consequence would likely occur when legal challenges come about if someone is hindered in gathering information to defend themselves. Houge noted Marsy’s Law being embedded in the constitution makes it very difficult to undo.

“The problem is when you put it in Constitution, you make it more difficult,” Hogue said to the Herald. “You cannot readily amend or adjust it because it’s embedded within the Constitution.”

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