Beware “Marsy’s Law”

Henry Nicholas, III, Marsy's Law bankroller and Broadcom Co-Founder

James Conner at the Flathead Memo wrote this week about “Marsy’s Law,” a ballot measure for which signatures are now being gathered in Montana.  Marsy’s Law is what is known by its advocates as a “victims Bill of Rights,” and is modeled on a ballot measure that has passed in a few other states. The Logicosity Blog has a post up about it here too.

Marsy’s Law claims to help victims of violent crimes, by making it easier to prosecute the accused but also keeping them behind bars for longer periods of time. This, mind you, comes as Democrats and Republicans in Washington are agreeing that prison sentences have been grotesquely excessive and are in need of reform toward some leniency. So Marsy’s Law is the kind of thing that you would have expected to see in the 1990s, when “Crime Bills” like mandatory minimums and sentence enhancements were all the rage and even moderate Democrats supported them.

My bigger problem is that this effort to amend the Montana Constitution is being funded, and was conceived, entirely by a California billionaire named Henry Nicholas, founder of Broadcom, who apparently has no connection to Montana at all.  Nicholas donated around $700,000 to the Montana project to get signatures and will no doubt throw in more. Chuck Denowh, the GOP operative, is running the effort and probably approached Nicholas to pitch him on the whole thing. Like any good astroturfer, Denowh is trying to make it appear on social media as though many Montanans are actively interested in supporting the the measure (they aren’t). And to my knowledge, no law enforcement official, nor victim, nor the Attorney General, has recently voiced any major needs or concern that at the Montana legislature to ask for all the things that Marsy’s Law provides. So it’s unclear why Nicholas is suddenly concerned about something in Montana that nobody really asked for.

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.

Though Nicholas may have legitimate personal reason for funding these measures (his sister was murdered when she was a young woman), what he is doing is meddling in a state where, to my knowledge, there is no problem with the criminal justice system in so far as the treatment of victims.  One would think that if Nicholas were so concerned with victims rights in Montana, that he would have spent some time here, done some sort of fact finding.  Instead, he will eventually have mailed a check of close to $1 million to a GOP operative who will no-doubt take a generous portion for himself, and then use the remainder to fund a ballot measure that will confuse citizens and offer them  a solution to a problem that barely exists.


8 Comments on "Beware “Marsy’s Law”"

  1. Republicans LOVE to create solutions to problems that don’t actually exist. Real problems, however, they ignore.

  2. Both defense and prosecuting attorneys in North Dakota have made a preliminary list of concerns that “Marsy’s Law” would: Abolish confidentiality currently used in juvenile court proceedings;
    Repeal existing restitution practices, with the unanticipated outcome of further expanding the prison population because some offenders are simply unable to pay “full restitution” as required;
    Require additional prosecutors to seek restitution on behalf of insurance companies or large corporations (who currently utilize their own counsel to do so);
    Repeal many specific protections and procedures in the 30-year time-tested statutes protecting victims;
    Result in increased costs to the state and the accused because more cases would go to trial when victims decline to participate in pretrial proceedings or discovery;
    Result in victims having to testify publicly in open court, rather than the protected environment in which depositions occur;
    Create an increased and unnecessary level of adverseness in the pretrial investigative stages of cases;
    Repeal multiple procedural and court rules;
    Perhaps require the State to hire and appoint counsel for victims (right to appointed counsel may be required because of the constitutional nature of the proposed rights);
    Create lawsuits against the state for failure to vindicate victims’ rights (currently the victims’ rights statutes do not permit victims or defendants to sue the state for noncompliance, but both victims and defendants would likely gain that right);
    Create additional opportunities for convicted offenders to appeal and challenge their convictions;
    Create additional welfare obligations through subordination of child support obligations to restitution because restitution would have to be paid “before paying any amounts owed to the government” (“the government” would include child support enforcement units);
    Impose an obligation on the court and prosecution to provide release and custody status changes to victims and witnesses (a huge task currently professionally executed by correctional authorities);
    Taint the trial process by permitting witnesses to review “any report or record” (i.e., all other witness statements), and to be present in the courtroom while other witnesses testify;
    Require prosecutors to identify, consult, and advocate for broad classes of “victims,” and perhaps to pick and choose some over others (for example, a large scale credit card or financial crime will require prosecutors to identify credit card companies, shareholders, officers, and others, as “victims” and to advocate on their behalf);
    Require probation officers to notify “victims” of changes in probation conditions, or that offenders have been ordered to short periods of incarceration as “intermediate measures” of probation;
    Courts may not be able to balance the constitutional right to a fair trial with competing victims’ rights.

  3. It is obvious that many citizens do not understand some of the basic US Constitutional protections an accused, convicted or incarcerated person has in our legal system. Introduce fear and politics – Democratic and Republican, unintended consequences and we have problems!

  4. This guy seems to have a double standard. He goes for the throat on “victims compensation”, But was able to be have a judge throw out a not guilty to Stock Fraud also Drug abuse. But the MOST troubling to me about him, is how he controlled the prop 66 in California. When someone can go in and influence a change of 62% of voters FOR a law, to killing it by 52% in ten days THAT is a troubling issue of once again Big Money buying votes.

    • I seems Nicholas likes that ugly “Three Strikes” law…

      Proposition 66 was a California ballot proposition on the November 2, 2004 ballot. It was a proposed amendment to the California three-strikes law (implemented in 1994 with Proposition 184). Prop 66 would have required the third felony charge against a suspect to be special violent and/or serious crimes to mandate a 25-years-to-life sentence. It also would have changed the definition of some felonies.

      • Rattus Norvegicus | February 27, 2016 9:21 PM at 9:21 PM |

        The three stikes law in CA was a fucking disaster. No ifs, ands or butts. This relic of the late 1980’s and early 1990’s should be shot down — the way it was explained to me it seemed like a law designed to railroad suspects. We’ve got enough problems with that already…

  5. Rattus Norvegicus | February 27, 2016 9:16 PM at 9:16 PM |

    I ran into a guy collecting signatures for this thing and explained to him (although not too nicely) why it was a bad idea. The only thing in it that seemed reasonable was informing the victim about parole hearings. But does something like that need a constitutional amendment? Not really, a statute is fine.

    Having grown up in California, the home of the idiotic constitutional amendment, I am extremely skeptical of them and something like this is a perfect example — fine as in initiative, but not as an amendment.

  6. I think the article is well written, and makes its case fairly well, but did the picture really have to a “Willie Horton” hit job??

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