Marsy's Law Redo
Updated: Apr 25, 2020
In the 2018 Session state legislators passed a Constitutional Amendment to go to the ballot later that year called Marcy's Law, which is a form or restorative justice that would grant victims rights in the Kentucky Constitution. Not all restorative justice is bad, but there needs to be a proper balance. This law did not strike that balance. However, there was so much to it that the full text of the bill explaining everything it would do was not presented to the voters, just a simple are you for victims rights being added to the Kentucky Constitution, sounds simple, sounds good, so it was approved roughly 60% to30%. That number should be surprising that 60% of the public most of which probably didn't know what was really in the bill voted for it. Fast-forward and to now, and the Supreme Court found the law "unconstitutional" on the basis that the public was not fully informed and the full text of the law and what it was going to do was presented to the voters for them to be fully informed on what they were voting on. So we can expect to see another attempt by the national Marcy's Law organization push for this again, we are already seeing advertisements for it in Facebook feeds and there is not even a bill request/bill number for it yet.
So here are the basics, there is a lot of this bill that is already in statute and there is no need to spell it out in a Constitutional Amendment. The dangerous parts in the bill are not, and those parts drastically do away with Due Process, a Constitutional right we have at the state and federal level. To understand why this is bad we will have to give a mini-crash course in the justice system we have set up in America.
1) You are presumed innocent until proven guilty
2) You need due process to make this determination
3) Due process must be administered impartially
4) In order for it to be impartial it needs to be administered by the State
5) Additionally the state is involved because if you committed a crime against someone then you are a danger to the public and a potential danger to the public and so the public was harmed at large by your criminal act as well.
6) You are entitled as a presumed accused innocent person to a fair and speedy trial
7) If you are convicted you still have the right not to be subject to cruel and an unusual punishment. The punishment must fit the crime.
So now we have laid the ground work to talk about what Marsy's law does that is bad.
1) It allows the victim say in the judicial proceedings. This is wrong on 2 fronts. First we are admitting before the trial has begun that there is a victim, thus eliminating due process, it flips the presumption of innocent until proven guilty to guilty until proven innocent. Second it takes away impartiality by inserting the supposed victim into the process.
2) It allows the victim to have say in the sentencing process. This is wrong on 2 fronts as well, because the victim is not impartial, and may dole out judgment harsher than is necessary creating inconsistency in our sentencing process, subjecting those convicted to cruel and unusual punishment. You are a criminal at this point, but you still have rights in the Judicial system we have here in America. You can't have people who committed the same crime have varying extremes in their punishment. Someone may be seeking vengeance and not justice. *Note the Marcy Law campaign's talking points says they are to be heard when it comes to sentencing along with a plethora of other public proceedings. We don't know for certain that this allows for this concern or not but it seems to be implied they will have some say in it, so we erred on the side of caution and explained all the problems with that. There is this session a bill that would allow for mediation between victims and offenders but as that bill stands now its voluntary between both parties, may be terminated at any time by either party, and have the condition that it does not go against the public interest, so we would have to assume these are low level crimes. This is a kind of restorative justice that could do some good and unclog the legal system. That bill is BR 996.
3) Oddly as it may seem in abuser/abused relationships the abused often times protects the abuser because they are not thinking clearly or logically because of the psychological harm caused them and therefore this will not ensure justice is served correctly either.
4) Even more bizarre is that this process can actually be flipped to where the criminal may become the victim and the victim the criminal, say in a self defense situation in which the original victim wins the struggle, but faces legal peril for defending themselves because the victim or their family/representative will have say in what happens to you during the legal proceedings.
5) The slippery slope, since we are doing away with due process and definitively declaring victims before a trial begins, this opens up the potential for abuse in which someone claims victimhood in order to exact some sort of penance or revenge on someone else for a matter that should not be in the legal realm whatsoever.
So if someone has been an actual victim of a crime, we sympathize with you, we hope the justice system didn't fail you. We understand it can happen, but as a free society we have to live with the risk of affording everyone the presumption of innocence, due process and fair trial. Its not perfect, but flipping it on its head will not correct what happened to you, but only create more potential to harm others.
So while Marsy's Law doesn't have a bill number right now, we need people calling in against it now, and let the legislators know that victim's rights may sound good, we can't have it being a Constitutional Right in Kentucky. Call 1-800-372-7181 or 502-564-8100 and voice your opposition.
For a more in-depth analysis of the issues involved in Marsy's Law the Kentucky Association of Criminal Defense Lawyers has some commentary you may find helpful in understanding this issue. For that info Click Here and Here