Marsy’s Law is well-intentioned, but be wary of unintended consequences

Annaly Sullivan is an OK Policy intern. She is a recent graduate of the University ​of ​East ​Anglia with a masters in Impact Evaluation.

Marsalee (Marsy) Nicholas was stalked and murdered by her ex-boyfriend in 1983. Released on bail before the trial began, Marsy’s killer sought out and confronted Marsy’s mother and brother, who had no idea he had been released. Outraged that crime victims and their families had no legal rights that could have prevented this situation, Marsy’s brother went on to campaign for expanded victims’ rights in California and across the US.

As a result, SQ 794, the Crime Victim Rights Amendment, will be on Oklahoma’s general election ballot on Nov. 6th, 2018. Proponents of the ballot measure, which is commonly known as Marsy’s Law, aim to give crime victims more say in the justice process. Marsy’s Law has already been adopted in several other states, and while the idea is broadly popular, it can bring significant challenges that Oklahomans should consider. While there may be value in creating further protections for crime victims, SQ 794 fails to address two major issues plaguing Marsy’s Law in other states: inadequate funding and questionable constitutionality.

Crime victims are already afforded a series of rights under the Oklahoma Constitution, including knowing the status of court proceedings, being heard at sentencing and parole hearings, and knowing the location of the defendant throughout the justice process. SQ 794 would add several rights to this list, including expanding the court proceedings at which victims have the right to be heard, adding rights to proceedings free from unreasonable delay and to talk with the prosecutor.

SQ 794 has costs that would further burden our criminal justice system

At least six other states have passed some version of Marsy’s Law since 2008, and many have found that it comes with unanticipated costs. Keeping track of and notifying thousands of people about developments in criminal cases takes significant resources, and estimates for the cost of implementation in different states range from $550,000 per year in Idaho to $2 million per year in North Dakota.

In 2012, the Berkeley School of Law published a report on Marsy’s Law in California. The number one challenge to full implementation the report found was inadequate funding. The state had to find and hire victim advocates who could fully explain and facilitate the new rights, especially to children and to victims with language barriers. Other expenses came from ensuring transportation for victims to all proceedings which the new law would give them a right to attend, and those associated with continually updating victims on all criminal proceedings. Nothing in the text of SQ 794 dedicates increased funding to pay for these increased responsibilities. In short, Marsy’s Law would become an unfunded mandate in an already underfunded justice system.

Forcing offenders to fund SQ 794 is likely to create problems

Given these new expenses and the Legislature’s recent history, it is likely that the Oklahoma legislature might fund SQ 794 by further increasing the already overwhelming fees and fines placed on defendants. Currently, eligible victims of violent crimes are compensated through the state’s Crime Victims Compensation Program – a program funded through fines and fees placed on people who are convicted of these crimes.

While it may sound fair that the perpetrator of a crime should have to pay for Marsy’s Law, there are two significant problems with this. First, many of the associated costs of SQ 794, such as notifying victims of their rights and other procedural updates, begin before a defendant is found guilty, so the money will be spent before the court knows whether the defendant will be asked to pay. Second, previous research by OK Policy suggests that despite rising criminal court fees, the amount of money collected by the state from those fees has leveled off. People simply cannot afford to pay more, and attempting to pass on the costs of Marsy’s Law to defendants would almost certainly be futile.

Marsy’s Law has run into legal challenges in other states

Cost aside, Marsy’s Law has come under legal scrutiny in other states. Last November, Montana’s Supreme Court ruled the law unconstitutional. In their ruling, the justices noted that Marsy’s Law interferes with several other rights already protected by their state’s constitution, such as a defendant’s right to bail, due process, and to face their accuser. Many of these conflicting rights also already exist in Oklahoma’s state constitution. Should Oklahoma voters pass SQ 794 in November, the law could be challenged on similar grounds to those that determined the Montana ruling.

No one is arguing that protecting the rights of victims is not a worthy cause. However, as recent years have shown, the Oklahoma Legislature has a tendency to pass measures without fully considering their budgetary ramifications or their constitutionality. While Marsy’s Law may be well-intentioned, voters should be wary of unintended consequences.

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23 thoughts on “Marsy’s Law is well-intentioned, but be wary of unintended consequences

  1. Nicely stated. Thank you for informing us as to the bills intentions. Right is right no matter the cost to us or the guilty. I will be looking for this bill on my ballot come November. Please keep us updated on any future bills any policies you see affecting us in this area.
    Thank you for the information.

  2. Funding is always an issue in Oklahoma. We can barely fund our schools. I agree victims should have rights and they do. But we cannot make policy decisions based on emotion. Another empty law we cannot afford or be compliant with. So what good is it really?

  3. America, Land of no consequences, Home of the Enabler, where Criminals have a bill of rights and victims rights are non-existent.

    Take your funding from literally any other program/area except the fire department. Amazing the nerve to complain of the cost.

  4. Let’s use the money we have allotted for the new turnpike, we could take care of the needs of people who have been a victim of terrible crimes. We need to put people first. Let’s educate and heal our state’s victims by helping them know their not a victim but a survivor and we care.

  5. It seems obvious the accuser needs more protection and rights and I agree cost should not be an issue. I think however that passing this as written would be an empty gesture it would be held up for a judicial decision of constitionality almost immediately. Our law makers should re-address these problems. On personal opinion the accuser is the victim 99% of the time the wording removes presumed innocence and should also be changed.

  6. The funding will always be an issue, but what worries me more is this:
    ” Victims would no longer have a constitutional right to know the defendant’s location following arrest, during prosecution, and while sentenced to confinement or probation, but would have the right to be notified of the defendant’s release or escape from custody”.
    Do victims currently have that right? If so, why is it being taken away, or why has this been included in the law?

  7. The funding will always be an issue, but what worries me more is this:
    ” Victims would no longer have a constitutional right to know the defendant’s location following arrest, during prosecution, and while sentenced to confinement or probation, but would have the right to be notified of the defendant’s release or escape from custody”.
    Do victims currently have that right? If so, why is it being taken away, or why has this been included in the law?
    -Barbara Krogh, Oct 1, 2018 11:20 pm

    I agree with you on this. I have seen no articles or news reports about this part of the referendum and this worries me a lot. My worry is that everyone will skim over this part and just vote yes without thinking about the consequences.

  8. If the plan is to fund through defendants, it is a bad idea. Defendants get out of jail with a record and a bill they cannot afford to pay because they can’t find good jobs with a criminal background. They get thrown in jail if they aren’t paying a bill that puts their own survival at risk and often forces them back into some type of crime to survive. I feel for the victims, but I’m just not sure this would be the way to go. Bills should be presented after the funding solution has been decided. I think the voters should know that before they vote for something that sounds like a good idea.

  9. ” Victims would no longer have a constitutional right to know the defendant’s location following arrest, during prosecution, and while sentenced to confinement or probation, but would have the right to be notified of the defendant’s release or escape from custody”.
    Do victims currently have that right? If so, why is it being taken away, or why has this been included in the law?”

    Victims of violent crime already have that option through VINE. It’s a fairly good system. SQ 794 as written will include EVERY SINGLE VICTIM OF A CRIME. I know most of us are thinking about violent crimes, but this also covers every crime statute on the book. Had your phone stolen from your car? How about your potted plant from your front porch? The victim advocates will tie up the Detective on your case to obtain information or where he/she is @ on the case. Phone calls / emails will be ceaseless to where the investigating agency can hardly work any case- even one that comes w/ more priority. How about calls to the ADA who’s prosecuting the case? They will be fielding calls all day & can’t prepare for trial or settlement. From an already overburdened case load, this will do nothing but make it worse for both LE agencies & prosecutors.

  10. The pro tv ad is very misleading.
    Victims can already be placed on a list to be notified of proceedings and releases. Also, something I read is the ‘accomodations’ for victims referred to in the bill, include transportation to and from proceedings if necessary. As the article states, victims already have rights and resources (I am the victim of a crime), that benefit us by our State Constitution. I am a big NO vote on this one. Sadly, I think it will pass b/c ppl base their votes on television ads rather than looking at facts.

  11. Take it from me folks. Marsy’s Law is nothing but a feel good stunt that won’t help a single victim. It will, however, cost your state countless tax dollars in court delays, gridlocked dockets and wasted prosecutions. It has been a total disaster everywhere it’s been tried. It is being funded by a billionaire with an axe to grind and not much common sense. Just say no.

  12. It seems to me that a huge number of approved State Questions have ended up in court due to conflicts with standing laws at the State or Federal level. It stuns me to think how questions make it out of committee at all without funding plans or reference to standing laws. I have to agree with Eric, this one is a feel good stunt we’ll end up paying for dearly in the end. The sad part is all the voters who will vote based on the commercials only.

  13. We have become an emotion driven society – one of the reasons we are so deeply in debt at the local, state and national levels of government. This is a poorly drafted state question that addresses too much more than the issue it seeks to address. If we want to do something about victims of violent crime being notified when a criminal is released back into society, that is worthy and should be pursued. The rest of this is over the top emotionally, financially, and legally. It should be soundly defeated.

  14. There is plenty of valid critical research information available in the Comments so far here. The legislature might have solicited public comment on this Measure at the publication level that has occurred by this time, back at the time of formulation of this Measure. All of these critical factors could have been treated, if the writers had cared rightly enough, to publicize wide enough,for average 8-5 workers to become aware of, like we are by now. I think the writers know this. Maybe something isn’t right. God Bless Oklahoma.

  15. First, Oklahoma already has a Victim’s Bill of Rights, as noted in the above policy report. Second, this is a measure being pushed by a California billionaire, an oligarch, trying to change every state’s constitution to his desire. Third, there is no equivalency between accused (defendants)and accusers (victims). The accused are prosecuted by the state, exercising the power of the government, the rights of the accused were laid down at the founding of this country. This is not the criminal revenge system, it is not a contest between the accused and the accuser. The accuser is only a witness for the prosecution, nothing more nothing less. The prosecutor does not represent the accuser, the prosecutor represents the legal power of the state. There are notifications and accuser inputs currently permitted by existing law there is no need to let a California billionaire dictate our constitutional provisions. The suspect constitutionality of certain provisions will bring litigation with equal certainty. More money to defend the unnecessary constitutional amendment. This State Question should be rejected.

  16. The fact that this law permits the financial burdening of defendants who have not been found guilty, shows that virtue signaling is the underlying motive here, not justice. $2,000,000.00 annually can, and should, go much further than our egos.

  17. This bill is being advertised as a way to ensure families are notified when bad guys are released back into society, but it doesn’t say that. It says a lot of other stuff, but not that.

  18. What if after killing your sister, the criminal found you and your mother and killed you both? How much money should that cost us? What is the cost of a human life? This may sound emotional to some, however it should fall in to the category of being an ethical issue. The law is established to protect. Who should have stepped up and protected this family? If we had put a cop on the door step for this family, it would cost money. If we put the family into protective custody, it would cost money. No matter what, we would have to pay for criminals crimes. We should want to help protect the victim and their families. Changing this law will do that.

  19. I am also a victim of a (very serious) crime. I would like to second the mentioning of the VINE network, which once signed up, alerts you when any offender is released from jail, moved to another location, etc. The DA’s office did listen to what I wanted as far as sentencing. During the investigation process the detective was very forthcoming with information and did keep me updated until the investigation was completed. My case may be different from others, as it was a domestic case. But I was very happy with the steps taken to ensure by the police department and DA’s office to keep me as updated as they could.

  20. I was reading the state questions last night, in preparation for Voting on Tuesday. Everything seemed as expected, until I got to state question 794. I was happy to read about a law to increase victims rights. However, as I continued to read the fine print, that most voters usually skim though at the booth, I was in shocked to read:

    * ”Victims would no longer have a constitutional right to know the defendant’s location following arrest, during prosecution, and while sentenced to confinement or probation, but would have the right to be notified of the defendant’s release or escape from custody”! I read it again in disbelief.

    Why was this additional wording * added to Marcy’s Law? Was it simply to cut court costs or is there something more behind this? This law was passed initially in California, a place I love and have lived in. However, currently California laws seem to support criminals having more rights than victims, as with sanctuary city laws. It seems deceitful to add this statement* taking away a major victims right, like an after thought! Proponents as well as TV commercials are saying 794 is all about Marcy’s Law and ‘victims rights’ on our Oklahoma Ballot!

    A few years ago I was the victim of a violent crime where I had my shoulder broken as I was pulled to the ground and dragged. My purse, phone, car keys, ID’s (ADDRESS) and credit cards were stollen. I quickly got up running after the truck that sped away and got a good description and partial plates. At the advice of an attorney friend, I took it upon myself to follow the case on the OSCN website. OSCN system tracked the case of my attacker, I knew his bail status, release dates, etc.

    It seems that OK statement 794, if passed would mean I would not be able to obtain the information I had received online. I don’t believe this was the original intent of “Marcy’s law”. This is very concerning. The perpetrator in my case was released on bail and went out on a series of attacks similar to mine, this time holding victims at gunpoint! These attacks occurred in places where I could have easily been! Not to mention he knew my address and had the key fob to open my car! After the criminals initial arrest, I was notified by phone through the Tulsa DA’s Victims Advocacy Office. However if I had not been able to obtain the information on OSCN, I would not have known he was out on bail! Who would NOT want this information to be my constitutional right to know?

    Maybe going to the court website would not be something that all victims would think to do. However, in these times of increased crime and overburdened courts, it may be more realistic. Why can’t the police just provide victims (and defendants) with a simple statement on their paperwork, including the right to information on the case and a web address to follow the case? These government websites simply need to be updated to handle persons registering for online notification. This will cost nothing (once developed by IT and in place), cut down on delays trying to reach the victims, etc. Technology is constantly changing, let’s take advantage of this age we live in and stop thinking that we need man power to accomplish every simple task. Just as being a patient has changed in healthcare systems. Victims can be their own “advocates”, empowered to help themselves, through a more efficient system. I recently read about VINE a website that does just what I have described. However, would this be unconstitutional if 794 passes?

    The wording of Question 794 is very unclear and conflicting! I am not sure what the motive was to include the statement above.*

  21. Unconditionally unconstitutional. This law will be overwhelming overturned. Why? It’s simply impossible to enforce without major civil rights violations guaranteed by the constitution. If it’s not overturned by the State Supreme Court it will be by the big one in DC.

  22. Marsy’s Law actually took victim’s rights away. It said so on the ballot which obviously not many bothered to read. Victim’s no longer have the right to know when inmates are transferred to other prisons or if they escape, etc. the tv commercials were fraudulent in what they purported the law would do. The rights they were supposedly giving were already constitutional rights. This is a demonstration of how easily anyone or any group can vote their rights away by not paying attention!! Heads up everyone!!

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