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.