Montana may get its own version of Jason Glodt’s astroturf Amendment S on its 2016 ballot. Constitutional Initiative 116 is one of several ballot measures currently circulating in Montana. Just like our Amendment S, Montana’s CI-116 is a version of Marsy’s Law, promoted by California tech billionaire Henry Nicholas. Just like our Amendment S, Montana’s CI-116 is pushed by a well-paid state Republican operative with no sign of grassroots support. And just like our Amendment S, Montana’s CI-116 appears to alter the state constitution without regard for specific existing state laws and practices and the costs and complications that it will create.
Consider these problems spotlighted by Montana Cowgirl:
Not everything in Marsy’s Law is objectionable, but as a whole, there are many things wrong with it, starting with the fact that it will amend the Montana Constitution. This is not a proposed statute that will be on the ballot. It’s a constitutional amendment, and many of the things it proposes could ultimately be ruled unconstitutional under the U.S. constitution or federal law. For example, the measure would allow an alleged victim of a crime to refuse to be deposed by the defense lawyer. If you are an accuser, the defendant has the right to confront you. That’s in the U.S. Constitution. Also, in many states this bill has been used to keep people from being paroled, even when they should be, and it has acted as a gateway for instituting harsher sentences. Keeping people in prison who would have been eligible for parole drives up costs and sticks Montana taxpayers with the bill [“Beware Marsy’s Law,” Montana Cowgirl, 2016.02.26].
Costly and unconstitutional—doesn’t sound like a good idea to me.
This might be better as a local policy, rather than a state law. There is almost no way State Attorney’s can afford all of this and still go after bad people.
Hello Corey, Marsy’s Law is not unconstitutional as already proven in many jurisdictions across the country. 32 states have crime victim rights in their state constitutions and at least 15 of them are very strong and similar to the language in Marsy’s Law. Every section in Marsy’s Law is currently in law, either in South Dakota, another state, or federal law. The blog post to which you reference takes issue with the Confrontation Clause in the 6th Amendment to the U.S. Constitution. Well-settled U.S. Constitutional law holds defendants do not have an affirmative pretrial right to interview or depose victims. In addition, the language in Marsy’s Law pertaining to this issue has been in the Arizona State Constitution for over 25 years. Nothing in Marsy’s Law abrogates a defendant’s Sixth Amendment rights under the United States Constitution. The blog post to which you cite also makes an erroneous claim that Marsy’s Law includes parole or sentencing reform. The claim that Marsy’s Law will raise costs is also without merit as evident in the states that have passed similar laws.
We are proud of our statewide grassroots organization and you will be seeing testimonials from many South Dakotans in the coming weeks explaining why we need Marsy’s Law. Their stories are horrific, and they deserve constitutional rights. They also deserve to be treated with respect.
I have yet to have anyone disagree with me when I state South Dakota has some of the weakest crime victim laws in the nation. I would be more than happy to discuss the details about Marsy’s Law with you and explain why it is needed in South Dakota, however, I am concerned that you are more interested in attacking my character than discussing the facts.
Jason Glodt
State Director
Marsy’s Law for South Dakota
Jason, thank you for replying! I look forward to s spirited debate about this constitutional tinkering.
But first, how much does Mr. Nicholas pay you to engage in this conversation?
Why didn’t we see those testimonials from grassroots supporters before this measure made the ballot? Why was there no groundswell of support for this purportedly swell bill in past Legislative sessions?
Hello MC, State’s Attorneys in other states have been functioning under laws similar to Marsy’s Law for years without significant burdens. We also have State’s Attorneys in South Dakota who go above and beyond what current law requires and are already doing what Marsy’s Law would require. The State’s Attorneys will also be able to utilize the Statewide Automated Notification Information System (SAVIN) that will soon be enabled to meet the notification requirements in Marsy’s Law. We are one of only five states that doesn’t currently have an automated notification system in place and this system is long overdue.
Corey, victim advocates have been fighting for stronger crime victim rights in South Dakota for decades and there are many examples of how our system has failed victims. I started fighting for crime victims 15 years ago when I became a prosecutor. Nearly every year, there is legislation introduced in SD to help crime victims, but we have fallen far behind what other states have done. Moreover, our existing SD Crime Victim Rights Act is unenforceable…victims do not have a remedy to have their rights enforced if they are violated…thus they really have no rights.
I do get paid as the State Director of Marsy’s Law… similar to how Rick Weiland and others are paid for working on many of the other initiatives that you advocate for.
Jason, you would like to just bypass the presumption of innocence and move on to the guilty verdict. WTF?
Right now someone can remain annonimus in their acusation of another human being, how is that right?
Every time you cut into that right to face your accuser, you are crapping on the presumption of innocence.
You are saying in effect that the victim’s rights should have greater weight then the untried. person charged with a crime.
I guess you really dont have a constitutional right to face your accusers. Those are just words to be bantered around to make people feel good.
The Blindman
Hello Bill, I support all of the existing federal constitutional rights for the accused and Marsy’s Law would not diminish any of those rights. Marsy’s Law would strengthen rights for crime victims, but it does not weaken rights for the accused. A recent U.S. Supreme Court ruling in Crawford v. Washington (2004) held defendants have a right to cross-examine out-of-court statements made against them. This right is settled case law that can not be infringed. The Confrontation Clause in the 6th Amendment guarantees criminal defendants the opportunity to face the prosecution’s witnesses in the case against them and dispute the witnesses’ testimony. This guarantee applies to both statements made in court and statements made outside of court that are offered as evidence during trial.
This discussion begs the question: Corey, as a candidate for State Senate, do you believe defense lawyers should have a right to depose crime victims? Based on your criticism of Marsy’s Law, one could assume you support giving defendants such right. However, I don’t want to make assumptions and will let you answer directly.
Republican operative Jason Glodt is now on a Democratic blog arguing that our 75% Republican legislature can’t be trusted to protect crime victim rights. Will wonders never cease?
If you don’t trust our prosecutors, and you don’t trust our judges, and you don’t trust our parole board, and you think our constitution should contain a laundry list of stuff that is normally contained in statutes and subject to modification by the legislature – like payday lending and victim rights – then Marcy’s law makes sense.
Jason, so your saying that nobody has ever been charged from information in an annonimus tip. Usually that tip was given to get even for something.
The Blindman
Jason, why don’t you just admit that the Marcy’s law prohibition of defendants deposing crime victims is a solution in search of a problem. Do South Dakota judges allow depositions of crime victims?
The question is not whether Cory supports something you’re seeking to prohibit. The question is why does your proposal seek to clutter up the constitution by prohibiting something that doesn’t happen here?
Can you name one time in South Dakota that a defendant was ever allowed to depose a victim? If so, explain why it shouldn’t have been allowed under the facts of that case.
It might be helpful to realize that not all crime “victims” are the accusers. Sometimes (perhaps during a trial, or after a lengthy investigation) we learn that the real victim is the accused defendant. Just ask the members of the Duke lacrosse team which were accused of rape and were arrested, kicked off the team, expelled from Duke and harassed for AN ENTIRE YEAR before the charges were dropped.
Who was the real victim there? Yet this law wouldn’t have allowed those players or their lawyers to depose the accuser. Am I to believe this is in the interest of justice?
A recent U.S. Supreme Court ruling in Crawford v. Washington (2004) held defendants have a right to cross-examine out-of-court statements made against them. This right is settled case law that can not be infringed.
Just a stray thought- who gets to determine if a law is settled? Roe v Wade keeps coming to mind. Back to our regularly scheduled program.
Not only that Mike, but my understanding is that ruling only covers cross-examination (during a trial) of prior out-of-court statements. it still does not allow for deposition of accusers prior to the trial which puts the accused at a distinct disadvantage.
We all know there have been many cases where an accuser changes his or her story between the initial questioning, the deposition, and the actual trial. To prevent defense attorneys from deposing an accuser doesn’t serve the interests of justice in my opinion.
There are a lot of good things in Marsy’s law…. I don’t think this is one of them.
The answer to your question Mike is: the next President.
A question that is a matter of legal semantics is, how does a victim receive due process? Due process is something accorded to a person charged with a crime. The California explanation of due process in regard to victims is the right “To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings.” That statement seems to pit the defendant’s right to due process, which includes procedural complications, up against a victim’s right to a speedy resolution to a case. Balancing the strategies of a defense against a victim’s right to quick resolution is a major task for judges, and that provision seems to infringe upon their discretion with the kind of result that mandatory sentencing has produced.
Many aspects of Marcy’s law contain the provisions that have been identified as processes that lead to wrongful convictions. It is aimed at vengeful defendants and ignores the rights of people brought into the justice system with minor charges. In South Dakota, there are many people who have accepted plea bargains and have accrued criminal records because they could not afford to go to trial. A typical case that we came across through work in a justice project was a person charged with a felonious assault. The person obtained a defense attorney who negotiated a plea bargain to a misdemeanor charge and pressured the defendant to take it by stating that the fee for taking the case to t rial would be $10,,000 up front. The defendant had no means to raise that kind of money, so pled guilty to a misdemeanor, and the attorney collected a nice fee still, without having to go to all the bother of mounting o defense.
Justice in South Dakota, and elsewhere, in cases such as this is a form of extortion.
We estimate that there are hundreds of people in South Dakota who have criminal records because they could not afford the cost of a trial in front of their peers. They are victims of a corrupted legal system that Marcy’s law does not address. [Court appointed attorneys do not have the resources or the motives to mount vigorous defenses, we have found..}
Hello David, Marsy’s Law will not infringe any defendant rights and there is no evidence that the provisions of Marsy’s Law attribute to wrongful convictions. It has been law in California for nearly 8 years now and many other states have had similar laws for well over a decade. Defendants’ rights are in the U.S. Constitution and they cannot be trumped by state constitutional law. So if there is ever a conflict between the rights of a defendant and a victim, the defendant would win. In regard to a speedy trial, Marsy’s Law would simply prevent defendants from postponing a trial for no legitimate reason.
The rights that Marsy’s Law would give victims are procedural rights and the two main remedies would be 1) if the right is about to be violated, “stop” – which comes in the form of continuances of hearings or quashing of subpoenas or denials of requests; or 2) a “re-do” of proceedings if the right was violated (although anything to which jeopardy has attached cannot be done over – so no 2nd trials). For example, if a victim isn’t notified about a plea hearing or given the opportunity to be heard, the victim would have legal standing to require the court to re-do the hearing. The cost from victims seeking “do overs” is de minimis. Oregon has constitution rights similar to Marsy’s Law which have been in place since 2008 and they have only had three appellate cases on the issues presented in it. California and Illinois have had zero.
I will be travelling for the rest of the day, but I would be more than happy to meet with you in Aberdeen in the near future to discuss Marsy’s Law in detail. My email is Jason@marsyslaw.us. Also, feel free to send me additional questions or contact me at that address.
So if there is ever a conflict between the rights of a defendant and a victim, the defendant would win.
Every judge interprets laws differently. How can you say the defendant would win? Would you be willing to stake your life on that?
many times in divorce court I heard the judge say that he was making a decision with findings of fact(those facts were never mentioned) and then he would proceed to make a wrong decision. The constitution is obviously not used in divorce court and that causes much wrong decisions. Years late I heard of some ridiculous accusations about me. That is to late to raise the kids right and proper.
So in Marcys law, if a rape victim does not have to confront their rapist even by written confrontation then someone could put some else in prison for a rape that did not happen and could not be defended against. This is wrong. So, keep Marcys law and let justice and proper defences work as they should.
can someone speak to glodt’s comments:
“I am concerned that you are more interested in attacking my character than discussing the facts.”
“I do get paid as the State Director of Marsy’s Law… similar to how Rick Weiland and others are paid for working on many of the other initiatives that you advocate for.”
why bring weiland into this? burr under his saddle?
Jason, when you said “begs the question,” I thought you were accusing me of a logical fallacy. It appears, however, that you were just saying that my comment raises the question, which you tie to political aspirations, which suggests you may be more interested in attacking my campaign than discussing the facts. But I’ve got nothing to fear.
I haven’t had to depose anyone, so I’m not directly familiar with all the legal precedent and implications of deposing victims. But on first approach to this issue, I say as a believer in due process that yes, defendants ought to be able to depose their accusers. I oppose defendants using depositions just to intimidate accusers or go on fishing expeditions for information not related to the charges at hand, but I get nervous with a rule that would allow the state to block a defendant from obtaining the evidence he or she needs to rebut the state’s charges.
I do appreciate Jason’s willingness to come here and talk nuts and bolts. He’s doing far more than just speciously shouting “You must not care about domestic abuse victims!” as his petition circulators did. To get me to change my mind about Amendment S, I need to hear arguments like Glodt’s that we are not infringing on rights to due process and the presumption of innocence. This liberal Democrat needs to be assured by the conservative Republican that this measure will not weaken citizens’ power to resist unfair or untrue charges filed against them by the state.
Depositions in South Dakota state criminal cases are covered by statute. The statute identifies extremely limited circumstances that allow either the prosecution or the defense to depose a witness.
The first exception is clear: when extraordinary circumstances exist showing the need to preserve evidence that otherwise would not be available during trial, a judge may order a deposition.
The rest of the statute seems ambiguous but appears to deal with a witness who either can’t make bail (this is an odd exception since prisoners normally are brought to hearings with a subpoena ad testificandum), or when a witness is jailed for failing to show up for the hearing or trial and then changes his mind and offers to be deposed.
Anyway, here is the relevant statute:
“SDCL 23A-12-1. (Rule 15 (a)) Depositions ordered only as specifically authorized–Order to preserve testimony for trial–Production of other evidence–Witness committed on failure to give bail.
Depositions shall not be ordered for discovery or any other purpose except as specifically provided by statute or rule.
Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place.
If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that his deposition be taken. After the deposition has been subscribed the court may discharge the witness.”
So Bear, if I’m reading that statute and your explanation correctly, would I be correct in responding to an Amendment S supporter’s question about deposing victims by saying, “Current law already provides victims great protecting from deposition by defendants, allowing such pre-trial questioning only in ‘exceptional circumstances’ and only with the permission of the court”?
If Bear’s read of that law is right, victim depositions appears to be another area where Henry Nicholas doesn’t realize the victim protections that already exist in state law.
Cory, I think that would be an accurate statement. Crime victims or witnesses typically cannot be deposed prior to trial. This Marcy’s law has parallels to the fake 18% initiative in that both are using terms to mislead the public into believing they are providing a non-existent benefit – an 18% interest cap on the one hand and victim/witness protection from defense lawyers on the other hand.
wow-“Marcy’s law has parallels to the fake 18% initiative in that both are using terms to mislead the public into believing they are providing a non-existent benefit “
Corey and bearcreek, the accusation that Marsy’s Law is misleading the public into believing we are providing a non-existing benefit is absolutely untrue. Marsy’s Law includes meaningful changes to SD law. If it did not, it wouldn’t be worth fighting for. Here are some examples: 1. SD’s current Crime Victim Rights Act is unenforceable..so they are really not rights. Marsy’s Law would strengthen existing rights by making them constitutional rights so they are enforceable. 2. SD doesn’t require victims to be notified that they have rights. Marsy’s Law will require they be informed. 3. The current SD Crime Victim Rights Act doesn’t apply to all crimes so there are many serious crimes for which the victims have no rights under current SD law, including vehicular homicide, simple assault, misdemeanor sexual assaults, intimidation, harassment, reckless driving, theft, identify theft, human trafficking, or hate crimes. If you are a victim of any of these crimes, you are not a “victim” under the legal definition in South Dakota under current law and thus have no right to be notified of court hearings or any right to be heard. 4. Under current law, victims don’t have a right to see a pre-sentence investigation of a convicted criminal. Marsy’s Law will give them that right. I could go on, but the point is that Marsy’s Law clearly includes meaningful change that will strengthen and expand crime victim laws in South Dakota to help victims. I would be more than happy to meet with you to discuss in detail.
has the bar association taken a stand?
Hello Leslie, not yet. Also, I have not yet had a lawyer disagree with my claim that South Dakota has some of the weakest crime victims laws in the nation. I suspect many will lawyers will oppose our proposal to change the constitution, but the fact remains that our crime victim laws are very weak.
Once again, there goes Jason saying our 75% Republican legislature can’t be trusted to protect victim rights. He gets these people elected then throws them under the bus all in the name of making an out of state buck.
Rorschach- Marsy’s Law isn’t a Republican or Democrat initiative. It is about doing the right thing for crime victims. It is unfortunate that some people feel the need to anonymously attach the character of others on blogs. Such conduct gives blogs a bad reputation and fuels the cynicism of politics. I started fighting for crime victims 16 years ago as a young prosecutor and I am honored to be working on a non partisan campaign to help victims. If would use your real identity I think we could have a civil discussion about the issues. Unfortunately, you seem more interested in anonymous attacks.
Marsy’s law is an “everything and the kitchen sink” proposal. The legislature has to take bills with a single topic and vote each thing up or down. A lot of the proposals in Marsy’s law would fail, and rightfully so, if they had to stand alone. Like the prohibition of deposing crime victims, which now is extremely rare and only done with a judge’s approval. Without that statute, cases will have to be dismissed on 6th amendment grounds if a victim’s undeposed testimony becomes unavailable.
Throwing a whole bunch of stuff into one proposal – which we hate when congress does it – is an overreach. Loading up the constitution in the name of taking discretion away from legislators, prosecutors and judges is a major overreach.
Throwing the people you got elected under the bus and saying they can’t be trusted – without even asking them first to vote up or down on the individual proposals contained in Marsy’s law – just plain self-serving political hackery.
Rorschach, sounds like you will be opposing all initiated ballot questions this year. I believe the SD legislature would have passed Marsy’s Law by a large margin. In 2014, the Illinois legislature put Marsy’s Law on the ballot with a vote of 111-2 in the House and 59-0 in the Senate. It then passed with 78% of the vote. Only the people can change the constitution and I believe in South Dakota’s system of direct democracy that allows initiated constitutional amendments. At the end of the day, the people still have the vote and they should have that right. Marsy’s Law isn’t an overreach. Very similar language has been in the Arizona state constitution for over 25 years and has proven to work well. The prohibition against victim depositions is one of the provisions that has been in Arizona’s state constitution since 1990.
Jason, first I only addressed the deposition issue and your response seems to ignore that.
Next, your response seems contrary to statute in several respects. You say our Crime Victim statutes are “unenforceable” yet SDCL 23A-28C-3 provides:
“Violation of chapter–Complaint– . . . If a victim as defined in § 23A-28C-4 alleges in writing that a violation of this chapter has occurred and files the same with the court having jurisdiction over the criminal matter, the court, in its discretion, may determine whether additional hearings or orders are necessary to ensure compliance with the chapter. . . . .”
This gives the crime victim the right to complain to a judge and the judge may order whatever hearings are needed to correct any failure to comply.
Next you say there is no requirement that crime victims be notified of their rights, yet SDCL 23A-28C-2 provides:
“Notice of rights–Victim’s response–Confidentiality. At the commencement of a criminal proceeding subject to the terms of this chapter, the prosecutor, by first class mail or electronic mail notification, shall advise the victim of the rights set forth in this chapter. . . . ”
You say the “Crime Victim Rights Act doesn’t apply to . . . vehicular homicide, simple assault, misdemeanor sexual assaults, intimidation, harassment, reckless driving, theft, identify theft, human trafficking, or hate crimes,” yet SDCL 23A-28C-4 provides:
“Victim defined. For the purposes of this chapter, the term, victim, means any person being the direct subject of an alleged act, which would constitute a crime of violence as defined by subdivision 22-1-2(9), simple assault between persons in a relationship described in § 25-10-3.1, stalking as defined in chapter 22-19A, a violation of chapter 22-22, or a driving under the influence vehicle accident, under the laws of South Dakota or the laws of the United States. If the victim does not survive such act or is unable to comment, the term, victim, means the members of the immediate family of the primary victim.”
You might be correct on the crime of theft, but it appears to are wrong on the other crimes you listed.
Ultimately, you seem to be handing out a lot of inaccurate and highly misleading information about the current state of our Crime Victim’s statutes. Hence the comparison between the 18% amendment and Marcy’s law seems fair. I note that the people I encountered gathering signature had both petitions and no others.
“Marsy’s Law would strengthen existing rights by making them constitutional rights so they are enforceable.”
I’m really confused by this statement, Mr Glodt. Strengthen existing rights by making them constitutional? So they are enforceable? huh?
Jason just says what his out-of-state handlers tell him to say. He’s probably generating billable hours today spinning on this blog.
Bearcreekbat… the deposition issue is well-settled U.S. Constitutional law that holds defendants do not have an affirmative pretrial right to interview or depose victims. This section prevents a defendant from harassing a victim with discovery requests or wide ranging depositions and forces the defendant to instead work through the prosecutor (gets whatever prosecutor has) or the court on the basis of rights to fair trial and to confront. Nothing in this section shall abrogate a defendant’s Sixth Amendment rights under the United States Constitution nor diminish the State’s disclosure obligations to a defendant. Again, this language has been in the Arizona State Constitution for over twenty-five years.
My responses are not contrary to statute. You cite § 23A-28C-4, however, that doesn’t provide victims with any enforceable rights. If the state makes a mistake and doesn’t provide notice or an opportunity to speak at a plea hearing, the victim has no legal standing under that statute to require a re-do of the hearing if their rights are violated. Moreover, the SD Crime Victim Rights’ Act only applies to a limited number of victims.
In regard to the notification statute, there is no way for victims to have it enforced if it is violated. Unfortunately, that law is violated very frequently…often by accident. We hear from victims every week who say they have never received any notification. Moreover, this statute only applies to a limited number of victims.
SDCL 23A-28C-4 does not include victims of vehicular homicide, simple assault, misdemeanor sexual assaults, intimidation, harassment, reckless driving, theft, identify theft, human trafficking, or hate crimes. “Crimes of violence” are defined in 22-1-2(9) as any of the following crimes…murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first degree, arson, kidnapping, felony sexual contact, felony child abuse, or any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon, or used any explosive or destructive device. There may be some cases where the element of “force” can be proven in felony offenses, however without that element, those crimes are not covered under the SD Crime Victims Rights Act. Another good example is disorderly conduct. Many domestic violence crimes are charged as disorderly conduct because it is difficult to prove the elements for more serious offenses. South Dakota doesn’t recognize victims of disorderly conduct as “victims” covered by the SD Crime Victims’ Rights Act.
Marsy’s Law is not associated with the 18% campaign. I have never met Lisa Furlong, nor have I ever spoken to her. They hired the same firm we did to work on their petition drive as did the medical marijuana and legislative redistricting campaigns and possibly others.
“We hear from victims every week”—we, as in Marsy’s Law for South Dakota LLC?
So I read the text of Amendment S, the part after Right #19 that says the victim or the victim’s representative can assert and seek enforcement of the rights in court. It does not specify a penalty for those who violate the victim’s rights. It simply says the court may provide a remedy to ensure the rights are protected. How does that provision differ from the enforceability of the current rights laid out in the standing Crime Victims’ Act aptly cited by Bearcreekbat, specifically SDCL 23A-28C-3, which provides, “If a victim as defined in § 23A-28C-4 alleges in writing that a violation of this chapter has occurred and files the same with the court having jurisdiction over the criminal matter, the court, in its discretion, may determine whether additional hearings or orders are necessary to ensure compliance with the chapter”? And does Amendment S negate the provision of SDCL 23A-28C-3 that says, “No cause of action exists against any person for a failure to comply with the terms of this chapter”? Does that statute go away, or does that statute remain in force and mean that victims actually can’t sue state’s attorneys and other public officials for not enforcing Amendment C if it passes?
Thank you for the additional questions Corey, Victims are contacting our campaign via our facebook page, phone calls and events to tell us their stories. We will be featuring many of them in videos throughout the election. We will also be adding a page to our website featuring victims stories.
In regard to your question about the section after Right 19- there is no penalty for state officials who violate the rights, the remedy is either 1. Stop- the court can stop rights from being violated or 2: Re-Do- the court can require a hearing to be redone so the victim’s rights can be exercised. Your statement “It simply says the court may provide a remedy to ensure the rights are protected” is incorrect. The same section states SHALL ACT … to afford a remedy. Current state law in SDCL 23A-28C-3 is discretionary and uses the term “MAY”. Marsy’s Law is enforceable, state law is not.
Marsy’s Law will not change SDCL 23A-28C-3 to create a cause of action to sue state’s attorney or public officials.
“the court shall act”—and if the court acts in a way that does not satisfy the victim, then what?
Practically, right now, under the statutory crime victim rights, how many victims avail themselves of the remedy provided under state law? And how often do the courts shrug off such requests (i.e., exercise their “may” discretion instead of acting to protect the statutory victim rights)? What reasons do courts have to shrug off such requests?
(Thank you for returning to a conversation I’ve left sit for a bit. I welcome further patient discussion.)
Thank you for the question Corey, Marsy’s Law won’t give victims the power to veto a prosecutor’s plea offer or interview with any prosecutor authority or discretion. Marsy’s Law requires a victim receive notification and a right to be heard…it guarantees victims a voice.
I don’t know if there is data available through UJS, but I will find out. Current law discourages victims from seeking court action because, under current law, the court doesn’t have to act and there is no guaranteed remedy. In addition, most crime victims don’t qualify for the rights under the existing SD Crime Victims’ Rights Act. We do know that many South Dakota crime victims do not receive notification of such hearings…and don’t learn about them until long after the fact…which makes it difficult, if not impossible for the court to resolve. Marsy’s Law will change the culture in the criminal justice system to give more priority to victims’ rights than they have now. What we have seen in other states with similar laws is that the courts do a good job during hearings asking the State if the victims have been notified and if there are any victims, or representatives) at the hearing to speak. The cost from victims in states with similar laws seeking “do overs” is de minimis. Oregon has constitution rights similar to Marsy’s Law which has been in place since 2008 and they have only had three appellate cases on the issues presented in it. California and Illinois have had zero.
Joshua Marquis, District Attorney Clatsop County, Oregon and Board Member of the National District Attorney Association, has stated:
“We have had enforceable victims’ rights in Oregon’s constitution since 2008. Since that time I have neither experienced nor heard of any resulting problem in the administration of justice in Oregon involving these rights or the enforcement of them. Quite to the contrary, the potential for enforcement is largely ensuring compliance with the rights. Enforcement of rights has insignificantly added to the efficiency of the criminal process.”
Bonnie Dumanis, San Diego County District Attorney, has stated:
“During the state-wide initiative campaign to pass Marsy’s Law, critics warned that Marsy’s Law would fundamentally alter the criminal justice system and overburden court resources to accommodate crime victims enforcing their rights. After more than three years of experience in utilizing Marsy’s Law on behalf of crime victims, none of those concerns have materialized.”
The Honorable Gary Paer, Judge of the Orange County Superior Court in California, wrote the following about Marsy’s Law:
“The exercise by victims of these rights in my court did not undermine the fair or efficient administration of justice. Marsy’s Law does not deny, either to the state or the defendant, the important rights that each have in our system. Before California adopted its constitutional amendment for enforceable victim’s rights, some feared that giving victims enforceable rights might cause delay, create administrative burdens for trial and appellate courts, cause conflict between prosecutors and victims, or deny defendants their constitutional protections. None of these fears have come to pass. Victims do not become a party to the proceedings, unless they are sworn as witnesses in a trial or hearing.”
Most states do not allow defendants to DEPOSE people. There is no Constitutional right to depose a person prior to trial. The right to depose is 100% statutory…what the legislature giveth the legislature may taketh away. And costs because of lengthier prison sentences is not a CONSTITUTIONAL issue. Can someone who speaks coherently please be referenced for objection to the ballot measure? (Oh, yeah, I almost forgot, Marcy’s law has already faced challenge in the 9th Cir- the most criminal living of all the federal appeals courts, and it survived. Next!)
Why not just support the Victims Rights Act signed into law by President Ronald Reagan? I worked as a First Responder Victim Advocate with law enforcement under the VRA. Why create something not needed?
Good to hear your experienced perspective, Susan! I agree completely and tried to make that point in 2016: South Dakota followed up on the VRA with its own crime victims rights in statute in the early 1990s. Marsy’s Law is almost entirely duplicative and unnecessary.