Guest Column: What’s Wrong with Amendment S/Marsy’s Law, Part 2

WNAX gives Amendment S sponsor Jason Glodt unopposed air time to promote California billionaire Henry Nicholas’s constitutional amendment. Perhaps WNAX will contact North Dakota lawyer and blogger Chad Nodland for his view of why the Glodt-Nicholas amendment is a bad idea.

In Part 1 of his critique of Amendment S, Nodland explained that the special rights “Marsy’s Law” would give to crime victims could allow fake victims to withhold evidence and cause innocent people to go to prison. In Part 2, Nodland explains how Amendment S could slow down the court system, overcrowd our jails, and force local officials to spend more money and hire more staff.

Marsy’s Law is going to fill up our jails more than they already are, forcing counties to hire more staff, and causing our property taxes to increase. It may seem like I’m talking about the same thing in volume two as I was in Volume One (link below), but I’m not. Stick with me for a minute here while I explain.

Let’s start, today, with another brand new constitutional right that would be created by Marsy’s Law, the proposed constitutional amendment being pushed on North Dakotans by a California billionaire. Marsy’s Law would create:

“The right to reasonable, accurate and timely notice of, and to be present at, all proceedings involving the criminal or delinquent conduct, including release, plea, sentencing, adjudication and disposition, and any proceeding during which a right of the victim is implicated.”

Again, on a surface level for someone who knows nothing about the criminal justice system or who hasn’t read the measure from beginning to end, this may sound fantastic. I’ve been told petition circulators are telling potential signers, “All this proposal does is make it so that crime victims get notice when their attacker is going to be released from jail.” If that were true, I wouldn’t be writing this long rant and would probably be one of the sponsors. But it’s NOT true. It’s ONE of the things it does, but it does a bunch of OTHER things many people probably don’t think about. Let me walk you through how this will work in the real world.

First we probably need to touch on the important issue relating to what crime victims/accusers Marsy’s Law covers. It doesn’t JUST cover cases where there’s an alleged “attacker” or an assault, murder or other violent crime. It also covers “financial” and “physical” crimes. Think “bad checks” and “use of credit card without permission” and “a drunk driver ran over a small tree in my yard or damaged my fence.” It also covers victims who claim to have suffered any amount of psychological harm.

Marsy’s Law specifically creates several new constitutional-level rights for anybody who claims to have suffered a “direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” (This is in the definition section near the very end of the measure language. And it’s fine, as definitions go, but stick with me.) A lot of people who haven’t read the measure (including supporters) have told me they thought it only related to crimes of violence, but that obviously isn’t true. It applies to victims of crimes where there is “physical” or “financial” harm done. And “physical” is not limited to crimes against a person; it presumably includes “physical” damage to any person or their property. That will include shoplifting or graffiti tagging or writing an NSF check or trespass resulting in property damage. It will include literally hundreds of other types of professed crime victims, in addition to assault, murder, rape, and all the other crimes to which people think Marsy’s Law should be limited, but it’s not.

So let’s walk through how this will work in the real world.

Let’s say a friend of yours is a struggling, recovering alcholic and falls off the wagon one Friday night. She gets in her car and drives while drunk. She runs off the road and knocks over a small, recently-planted sapling at the edge of someone’s yard. That someone is a snow bird, and they’re in Arizona for the next six weeks. But their small tree has been knocked over, and there’s a rut in their wet sod, so they have suffered a “physical, psychological, or financial harm.”

Normally, in more “urban” parts of North Dakota, bond hearings are held on Monday so your friend will likely get out of jail by the end of the business day on Monday if she wasn’t already released to a sober friend on Friday night or on Saturday, after sobering up. But under Marsy’s Law, because there was “physical” and/or “financial” harm, your friend can’t be released and doesn’t get a bond hearing until the Arizona snow bird can be identified, notified AND given a reasonable opportunity to attend the bond hearing.

So your friend sits in jail while the local part-time prosecutor tries to figure out who owns the home/cabin/property and get them “reasonable” and “timely” notice, with a meaningful opportunity to “be present at” the bond hearing. It’s pretty easy to track down a home-owner’s name using property tax records, but it’s more work for the prosecutor in every case where there’s a Marsy’s Law victim. (There may also be a problem if there’s a renter that’s gone for the weekend, but I’ll keep out of that for now.)

So now the prosecutor, after doing all this extra work, has to send an officer (more work for them too) to the house to give them the Marsy’s Law notice (or it may be possible to mail it, though that adds three days for deliver time by court rule). But nobody’s home. Your friend sits in jail. And once the snowbird is notified of the bond hearing, it’s not “reasonable” or “timely” to tell them, “Hey, Gladys and Dwight, the bond hearing is in three hours.” I’d suggest to you that’s not reasonable and timely. We’re talking about a constitutional right, so they have to be given “meaningful” notice and opportunity to attend the bond hearing.

The prosecutor and judge will have to give the snowbirds time to make arrangements to get back to Cooperstown or Flasher or Washburn or wherever this happens, whether that means giving them time to buy a plane ticket, pack and come home, or driving back to North Dakota, or making arrangements to have someone cover for them at work. So your friend might sit in jail for a week. Possibly longer. (Let’s ignore, for now, that complying with Marsy’s Law might violate the accused person’s federal constitutional rights, and how much it will cost the counties and the state to litigate that issue.)

Meanwhile. Other people are charged with other crimes and have to sit in jail while the prosecutor tracks down those “victims” of those crimes too, giving all of them meaningful notice and opportunity to be present at that bond hearing. Sure, some may decide to waive that right, but I can guaran damn tee that some won’t. It’s hard to imagine this NOT filling up jails more than they already are to some degree.

Again, all of this creates new work for the police, prosecutors and judges who have to deal with the rights created by Marsy’s Law though not paid for by Marsy’s Law. There is no funding mechanism in Marsy’s Law, and the California billionaire certainly isn’t going to pay all the expenses associated with implementation, though he’s probably got enough money hidden in his lair. (See“Dr. Nicholas and Mr. Hyde” story in Vanity Fair. It’s a crazy story. Dude actually has a lair.) Additional rights for victims means paid hours for cops, prosecutors, victim-witness advocates, court staff, judges, etc. And jail space. Jail space isn’t free. Somebody is going to have to pay for all of this.

So now counties will have to pay for all the Marsy’s Law costs. And keep in mind this law doesn’t just apply in Fargo or Bismarck where there’s already a big scrum of lawyers working in the prosecutors’ offices; it also applies in Grant County and Griggs County, and many other rural counties, where there’s only a part-time prosecutor and where there is no victim witness advocate on staff. Those counties may need to hire a full-time prosecutor if this passes, and hire at least one full-time victim-witness advocate. Marsy’s Law is a huge unfunded mandates for the Counties. When counties’ expenses go up, where do they get the money to pay those expenses if the state isn’t providing it? Property taxes.

These are just two examples of problems with Marsy’s Law, and we’ve still just barely scratched the surface. There’s plenty more that’s bad with Marsy’s Law. I’ll get into some more of that when I have a little time to write Volume Three.

Stay tuned [link added; Chad Nodland, North Decoder Facebook post, 2016.04.14 ].

I eagerly await both Mr. Nodland’s Part 3 and Mr. Glodt’s examples of victims suffering under current practice in South Dakota’s criminal justice system.