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Taking the Initiative: What’s the Deal with “Marsy’s Law”?

In recent years, this nation and this state have had to examine whether our criminal justice system truly ensures liberty and justice for all. In Nevada, we have a ballot initiative that may decide the future of criminal justice reform here. What exactly is “Marsy’s Law”, how has it changed the system in other states, and why is Question 1 more complicated than its wording suggests?

How it all began
Photo by Andrew Davey

In 1983, Marsalee “Marsy” Nicholas was a senior at UC Santa Barbara. Just as she was entering adulthood, Marsy Nicholas was stalked and murdered by her ex-boyfriend, Kerry Conley. Conley was ultimately convicted of murder and sentenced to life in prison. Yet because he was given the possibility of parole, the Nicholas family attended many of his parole hearings in an effort to ensure he’d never actually be released.

Henry Nicholas, Marsy’s brother and the co-founder of Fortune 500 company Broadcom, didn’t appreciate how and he and his family were treated by the system. Henry Nicholas then spearheaded the campaign for a comprehensive constitutional amendment for victims’ rights that he deemed “Marsy’s Law” in honor of his late sister. He succeeded in getting Proposition 9 approved in California in 2008. Since then, Nicholas has taken his mission across the nation with Marsy’s Law for All.

This campaign first landed in Nevada in 2015, when Marsy’s Law for All worked with then State Senate Majority Leader Michael Roberson (R-Henderson) to kick-start the process of passing such a constitutional amendment here. SJR 17 passed with bipartisan support in the Nevada Legislature in 2015. And despite Democrats taking majorities in both houses of the Legislature in 2016, SJR 17 passed unanimously in 2017.

What exactly is “Marsy’s Law”, and how would it change the criminal justice system?
Photo by Andrew Davey

In essence, “Marsy’s Law” is the culmination of a larger crime victims’ rights movement that’s reworked the balance of power in the criminal justice system over the past five decades. Though this movement first garnered praise from President Ronald Reagan and his administration, it would later be embraced by President Bill Clinton and accompany a bipartisan rush to pass legislation encouraging harsher punishment, punishment that tends to disproportionately affect the working poor and people of color.

At first glance, “Marsy’s Law” itself reads as a simple laundry list of demands for “respect” and “protection”. But when we dig deeper, it becomes clearer that “Marsy’s Law” establishes a new set of rules that expands the power and the role victims can have in the prosecution of criminal defendants, then in preventing their release should they be convicted of such crimes. If a defendant seeks evidence to prove one’s innocence, should the defendant be denied such evidence because its exposure in a court of law might “disrespect” the victim? If a prisoner has met every other condition to gain parole, should that prisoner still be denied parole just because the victim’s family seeks “protection” from the successfully reformed prisoner? If certain law enforcement activities otherwise fall within the public’s right to know, should the public be kept in the dark if a victim considers it “disrespectful”?

These aren’t just esoteric philosophical issues being debated in college lecture halls. After South Dakota voters approved “Marsy’s Law” in 2016, South Dakota’s Legislature had to draft a new constitutional amendment just to rewrite it and fix the logistical problems (such as mandatory notification of victims, even for misdemeanor offenses) that materialized after its passage. Almost a year after Montana passed its “Marsy’s Law” in 2016, the Montana Supreme Court overturned it due to its multiple changes to the state’s constitution. And after California passed the first “Marsy’s Law” in 2008, the state has since passed a series of criminal justice reform measures to address a wide range of issues (such as prison overcrowding) that were likely exacerbated by “tough of crime” laws (a category that includes “Marsy’s Law”) that demanded maximum punishment at any cost.

How might “Marsy’s Law” change the criminal justice system here?
Photo by Andrew Davey

In recent years, Nevada has taken a few steps in the direction of comprehensive criminal justice reform. And after reform advocates waded into the Clark County District Attorney race earlier this year to advance their goals, they’re eyeing opportunities to secure major reforms in the Legislature next year, such as ending the practice of cash bail and addressing the courts’ reliance on fines and fees for revenue.

“Marsy’s Law” doesn’t address either of those issues, but if it passes it probably will favor more convictions and harsher punishment in a system that’s already been tilting in that direction. Question 1 may not have attracted as much attention as other initiatives that will be on our ballots this fall, but that doesn’t mean it shouldn’t. In this case, voters might want to check the fine print and prior track record before rushing to a final decision. 

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