Looking into Marsy's Law

Few issues on this year’s ballot seem as innocent as Constitutional Initiative 116.

The proposed amendment to the Montana Constitution would create a set of codified rights for crime victims. It also has the potential to be one of the biggest changes to the constitution since it was ratified in 1972.

Who could oppose that?

Derek VanLuchene, president of the Helena-based non-profit Ryan United, said the initiative, also known as Marsy’s Law, would ensure crime victims have a legally required voice in criminal proceedings.

“I think CI-116 would give victims more of a substantial voice throughout the process,” VanLuchene said. “Marsy’s Law would give victims a say, and solidify our victims’ rights.”

The proposed amendment, if passed, would guarantee crime victims’ right to be free from intimidation, to have their welfare considered when judges set bail for the accused, to be notified when the accused is released or escapes, and to be treated with fairness.

It is based on a similar California law, enacted after the 1983 murder of Marsy Nicholas at the hands of her ex-boyfriend. That crime, and the hardship that followed for her family, moved Nicholas’s brother, a successful businessman, to bankroll the fight to add a crime victims’ bill of rights to California’s constitution.

The measure passed in 2008, and now Nicholas is turning his sights nationwide. Similar proposals have been introduced in North Dakota, Hawaii, South Dakota, Nevada, Kentucky and Georgia.

Here in Montana, however, there is pushback against the initiative.

Anthony Johnstone, a law professor at the University of Montana in Missoula, said CI-116 carries the potential for a host of unintended consequences. He also stated, virtually all officials already strive to achieve what Marsy’s Law would mandate, and that codifying victims’ rights would put a heavy burden on prosecutors and the state.

“(CI-116) will re-direct prosecutorial, judicial and other legal resources toward the priorities that Marsy’s Law identifies over whatever other priorities they might currently be trying to meet,” Johnstone said. “There are only so many hours in a day.”

He said many of the rights outlined in the initiative are already covered by Montana laws and adopted as a part of everyday practice. Enshrining them in the state constitution, he added, would be an unnecessary step with far-reaching consequences.

VanLuchene said he understands the prosecutors’ side but added that there are times when victims can fall through the cracks.

“I would like to think that prosecutors already do a good job of keeping victims notified,” he said. “But Marsy’s Law will add a step in the process to make sure victims know what their rights are and to make sure those rights are enforced.”

Some in the legal community also worry the idea might be unconstitutional.

CI-116 would also give victims the right to refuse an interview with the defendant, which state District Judge Russell Fagg of Billings said is an unconstitutional violation of the accused’s right to confrontation.

“When a defendant is on trial and his liberty is at stake, the defendant should certainly have the right to interview the alleged victim and find out exactly what the victim’s testimony will be at trial,” Judge Fagg wrote in a Billings Gazette guest column this spring.

The Montana County Attorney’s Association, which represents the state’s prosecutors, has not taken a stance on the initiative, which Johnstone said is understandable – who wants to campaign against victims’ rights?

But the issue extends beyond just victims, he added.

One concern, he said, is the financial burden the law could put on the state. According to the Montana Constitution, a proposed initiative must also include a note on the financial impact of passage – but CI-116, as it will appear on the ballot in November, won’t have such information, because it’s too vague and too difficult to accurately estimate.

CI-116, Johnstone said, is an unfunded initiative, which means it would put requirements on the state but does not provide for a way for the state to pay for them. Johnstone estimated it could cost Montana millions of dollars a year, all for a codification of rights that most victims in Montana already enjoy.

“The money to fund Marsy’s Law mandates has to come from someplace else,” Johnstone said. “It’s going to make state and local government officials jobs tougher. We don’t know where the money would come from, but there will be impacts. Some other programs will be short-changed.”

But for VanLuchene, who was just 17 when his 8-year-old brother Ryan was murdered almost three decades ago, the benefits outweigh the potential costs.

“I’ve worked with crime victims for years, and this is something that will really be a step forward,” he said. “It might add responsibility to prosecutors, but we need to take steps to make sure that victims of crimes get the protection and voice they need.”