Voters wait in line to cast their ballots in the Nevada primary election at Kenny Guinn Middle School on Tuesday, June 12, 2018. (Jeff Scheid/The Nevada Independent)

Fiscal analysts say they can’t determine exactly how much it will cost Nevada to implement Marsy’s Law — the “Crime Victims’ Bill of Rights” — if it passes in November, but that it will probably reduce funding to government agencies that rely on fees from offenders because it requires that restitution take priority over all other payments.

It’s also expected to cost more in order to meet the law’s requirements for extensive notification to victims about a defendant’s court case.

The Legislative Counsel Bureau (LCB) earlier this month released a fiscal analysis for how the ballot measure — modeled after a constitutional amendment in California — might affect the state. Marsy’s Law, known as “Question 1,” seeks to keep victims more up-to-date about the status of their alleged perpetrator’s court proceedings, enshrines some victim rights that are part of state law into the Constitution, where they’d be harder to amend, and ensures that victims get paid full restitution before the offender pays any other fines and fees imposed by a court.

“Because the State and local governments will not receive revenue from these sources until full and timely restitution is paid, certain state and local governmental budgets or programs funded by these sources may be affected by a reduction in revenue,” LCB fiscal analysts wrote. “However, the potential reduction in revenue received by the State and local governments cannot be determined because the amount of restitution that will be ordered and the amount of restitution that ultimately will be paid cannot be estimated with any reasonable degree of certainty.”

The uncertainty about the effects of Marsy’s Law comes as the measure has faced scrutiny in other jurisdictions where it’s passed. In South Dakota, defense lawyers complained that the victim notification requirements were forcing courts to push back hearing dates and keeping defendants behind bars longer. In Montana, the entire measure was voided by the Montana Supreme Court after a statewide vote when justices said the “bill of rights” contained too many changes and voters should rule on them separately.

Marsy’s Law was approved by almost all lawmakers in the past two legislative sessions under the moniker Senate Joint Resolution 17; a few Democrats who opposed it in 2015 backed it in 2017. It also has support from high-profile elected officials, including Clark County District Attorney Steve Wolfson, who made a promotional video for the measure that’s being used in Facebook ads.

“As a prosecutor, I’ve seen how victims of crime are often forgotten about during the criminal justice process,” he said. “We can change that. Senate Joint Resolution 17 gives crime victims the equal rights they deserve.”

In response to questions about whether the measure’s provisions would increase workloads or require more staff at the taxpayer-funded district attorney’s office, Wolfson’s office said nobody was available to answer. But Wolfson indicated in a May interview with The Nevada Independent that victim advocacy workers were already overloaded and the law would require more robust services to victims.

“I’ve got people that are very overworked now. I mean I’ve got advocates that run from court to court to court to court from floor to floor to floor to floor in this building just to cover court appearances to help victims,” he said. “So we may need additional resources, yes.”

History and elsewhere

Marsy’s Law came about after 21-year-old U.C. Santa Barbara student Marsalee “Marsy” Nicholas was fatally shot in Malibu in 1983. Her ex-boyfriend, who prosecutors said was jealous that she had started dating someone else, was later convicted of second-degree murder in the case.

Nicholas’ mother and brother were in a grocery store a week after the killing and said they were confronted by the ex-boyfriend.

“She had no idea that he had been released on bail,” the Marsy’s Law website says about the mother’s encounter. “She was not informed because the courts and law enforcement, though well-meaning, had no obligation to keep her informed. While criminals have more than 20 individuals rights spelled out in the U.S. Constitution, the surviving family members of murder victims have none.”

Marsy’s Law was approved in California in 2008 as a statewide ballot proposition, and the concept has since spread elsewhere with help from Marsy’s brother, Henry Nicholas III. He co-founded the semiconductor business Broadcom, which was acquired by a Singapore-based company in 2016 for $37 billion.

He is almost single-handedly funding the ballot campaign in Nevada, supplying $645,000 over the past year and a half — the entirety of the measure’s contributions aside from a $1,500 in-kind contribution. Despite having no organized opposition, the campaign had seven registered lobbyists in the 2017 legislative session and has contracted with several consultants, including the well-respected Republican firm Red Rock Strategies.

Marsy’s Law campaigns in other states have been notable for their sophistication and high spending.

“The real export from California is indeed the whole lobbying operation,” Robert Weisberg, co-director of the Criminal Justice Center at Stanford University, told The Associated Press last year about the Marsy’s Law movement. “We’ve helped birth the creation of a vast industry that knows how to put forth statewide ballot campaigns.”

So far, California, Illinois, South Dakota, North Dakota and Ohio have adopted the constitutional change. This year, the measure is on the ballot in Kentucky, Oklahoma and Nevada and efforts are underway in other states.

Supporters have even talked about implementing it as an amendment to the U.S. Constitution.

Potential loss of court fee revenue

Fiscal analysts say the law could disrupt the revenue flow for government agencies that rely on fees paid by offenders. That’s because Marsy’s Law specifies that restitution must be completely paid before any other government agencies can collect fees and fines, and those agencies might suffer if the offender is then unable to pay the fees.

“Restitution is for victims and not for the government,” Marsy’s Law state director Will Batista said. “Oftentimes victims never see a dime of restitution because it’s absorbed in these assessments, or the fees, or the fines. And so at the end of the day, they wind up not having any form of compensation back to them when ultimately they are the ones that suffered the loss.”

Existing Nevada law lays out a fee payment scale for misdemeanors based on how large a fine a court imposes on a defendant. Fines as little as $5 carry an “administrative assessment” of $30, and that assessment rises to $120 for fines of $500 to $1,000.

The administrative assessment must be paid even before the fine. Of that, $2 goes to county juvenile justice programs, $7 supports municipal courts and $5 goes to the state general fund. Any remaining money goes to the general fund for use by courts, including the Supreme Court, creation of a uniform system of records, continuing education for judges and the senior judge program, which enlists retired judges to act as substitutes when regular judges are absent.

Additionally, the fees support the central repository of criminal records for background checks, a victims of crime fund, domestic violence programming and the Peace Officers’ Standards and Training Commission.

Records from the Nevada Controller’s Office indicate that more than $16 million in court administrative assessments were paid from counties to the state in fiscal year 2017. In addition, the state receives revenue from court fines, specialty courts such as drug or mental health court and for DUIs.

But it’s unclear how much would be lost under Marsy’s Law, largely because it’s impossible to predict how much restitution courts will order and how much offenders will ultimately pay, according to the LCB analysis. Agencies contacted by The Nevada Independent, including the Administrative Office of the Courts, the Clark County District Court and the Department of Public Safety, didn’t have figures on how much restitution has been ordered or is currently outstanding.

But the Division of Parole and Probation reported that it collected nearly $2.6 million last year in victim restitution payments.

Parole and probation officers “make every effort to collect restitution payments from the inception of the offender’s supervision grant until their discharge date,” according to Department of Public Safety spokeswoman Kim Yoko Smith. Unpaid balances are discussed during reporting appointments with their officer, and if the offender doesn’t have money to pay, officers work with them to help them create a realistic budget.

Currently, not paying restitution could mean an offender isn’t eligible for earned compliance credits and could be subject to sanctions such as a curfew or mandatory job search. If an offender is discharged from parole or probation and hasn’t paid their restitution in full, a victim could file a civil lawsuit to try and recoup it.

Not paying a fine, on the other hand, could result in a bench warrant, although there are rules that prevent someone from being sent to jail solely because they’re indigent, according to John McCormick, assistant court administrator with the Administrative Office of the Courts.

Effect on inmate bank accounts

Marsy’s Law could also affect inmates’ accounts. Existing law allows the prison to make “reasonable” deductions from inmate accounts — which are replenished by wages from their in-prison jobs and contributions from friends and family.

State law allows nine types of deductions and assigns them a priority, with the first deductions going to a Victims of Crime Compensation fund, while restitution, administrative assessments and court-ordered fines are listed as priorities 6, 7 and 8. Deductions can also be made from the inmate accounts to pay for room and board, support for their family and to save up for the cost of their funeral.

Brooke Santina, spokeswoman for the Nevada Department of Corrections, said the requirement that restitution be paid above all other deductions could force the department to cover more of inmates’ costs, rather than having them chip in for them through their own accounts.

She said it might also reduce family members’ willingness to deposit money in the accounts because all money would be directed to restitution until it’s paid off, and the inmate wouldn’t receive funds that could help them buy things at the commissary.

Notification of victims

Another expected cost is the expense of notifying victims — defined as “any person directly and proximately harmed by the commission of a criminal offense under any law of this state” — of “all public proceedings … at which the defendant and the prosecutor are entitled to be present.”

Neither the Clark County or Washoe County courts could say how much they think that would cost them. Batista said he thinks the notifications could go through the existing Victim Information and Notification Everyday (VINE) system, but the system currently only notifies someone about whether a person is in or out of prison or jail in Nevada and doesn’t track all proceedings of all the courts in the state.

“I think our biggest challenge is we would have to totally overhaul VINE and it would be incredibly expensive and it would take a lot of time,” said Jennifer Rey, victim services officer at the Nevada Department of Corrections. “It’s a huge undertaking and it could take possibly years.”

Nevada recently renewed its contract with the maker of VINE, Appriss, for another four years for about $838,000. The system, which updates its information every 15 minutes, provides custody status information by phone, website or mobile app and can be configured to give an alert when a person is released from custody. In 2016, there were more than 24,000 people registered to get alerts through VINE.

But while VINE could tell someone when a suspect is released from the Clark County Detention Center, for example, it’s not connected to the court record system to be able to tell the person when a bail hearing is scheduled and in which courtroom.

And while urban counties including Clark and Washoe post information about hearings on their website, smaller counties don’t. Proactively providing electronic notifications would appear to require the collection and automation of all court records in the state to capture information about court dates and then send notifications to the proper people.

Rey expects implementing Marsy’s Law notifications would require funds to bring all counties’ court websites up to speed, then training staff in all those locations to add information to VINE, if that’s the system that’s being used.

Batista, however, indicated there could be some leeway in the notification requirement and that complying might be as simple as instructing victims how to access information on a court website.

Rey also raised questions about whether the notification rules might delay court proceedings, especially shortly after arrests when hearings are scheduled in quick succession. In instances where a victim cannot be immediately found, courts might have to decide between holding a hearing anyway or waiting until a victim can be notified of the hearing.

Batista said fears of that haven’t materialized to his knowledge.

“We haven’t seen any backlogs in any of the states where we’ve been implementing it,” he said.

Criticism

There’s debate about whether Marsy’s Law needs to be part of the state Constitution because many of its provisions are already in state law. When the measure was discussed in the Legislature in 2017, John Piro of the Clark County Public Defender’s Office characterized it as a solution in search of a problem and noted that it would be hard to change Marsy’s Law once it’s in the Constitution if it has unintended consequences.

But proponents say that victims’ rights don’t get the respect they deserve if they’re not in the Constitution, like the rights of the accused are. For example, the Constitution guarantees the accused a right to a speedy and public trial, the right to remain silent and protection against excessive fines or bail, among other things.

“When victims’ rights are not elevated to that level, they do not change culture. If I asked most people if they know what their statutory victims’ rights are, very few could articulate them,” testified Meg Garvin, director of the National Crime Victims’ Law Institute. “However, people recognize defendants’ constitutional rights, even if they are just those in the Miranda warning, because they emanate from fundamental law. It is a cultural moment to say victims, who are the other individuals most impacted by criminal justice, should be included in fundamental law.”

One of the slogans for the Marsy’s Law campaign is giving equal rights to crime victims. Critics say that’s a misguided goal that disregards why the accused are guaranteed so many rights.

“Constitutional rights for the accused exist to limit the state’s power against individuals when the state seeks to deprive them of life, liberty, and property. The accused have constitutional rights because getting it wrong means we imprison innocent people and an offender remains free to harm others,” wrote Laurie Schipper and Beth Barnhill, victim rights advocates in Iowa who oppose Marsy’s Law in their state constitution. “Victims’ rights serve a completely different purpose aimed at ensuring recovery for individuals, not protection against state power. Granting victims constitutional rights equal to the accused in criminal proceedings inappropriately undermines due process by creating conflict between victim and defendant rights. It also exacerbates flagrant inequalities in our criminal legal system.”

Batista insists the law isn’t aimed at disturbing the balance intrinsic in a defendant’s rights.

“Nothing in Marsy’s Law is meant to diminish the rights of the accused,” he said. “Nothing would prevent anyone else from receiving a fair trial … ultimately the burden of proof continues to be with the state. It’s not now being shifted to the defendant. Those are rights that we feel are very critical to the criminal justice process.”

 

Marsy's Law Fiscal Analysis by Michelle Rindels on Scribd

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