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Voters should reject Marsy’s Law

Dayvid Figler
Dayvid Figler
Opinion
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Scales of justice.

Nevada Question 1, aka Marsy’s Law, is a ballot measure in the upcoming November election proposing a remarkably long (twenty-three sections) and dangerously ambiguous change to the Nevada Constitution. Well, maybe I’m being a little dramatic. In fairness, it’s no more dangerous than any broadly-phrased alteration of a guiding, overarching, fundamental, final authority framework document like a Constitution tends to be.

Indeed, if you were to read more than the Twitter-length descriptors that come ready-made in the campaign for passage, you would see the measure is a mishmash. Unfortunately, it’s all or nothing in passage. Contained in it are platitudes, contradictory language to existing provisions, redundant provisions to existing laws, well-intentioned but misplaced aspirations, mandates for some-or-other future times and new causes of action for the courts to grapple with.

It will likely pass with maybe 85 percent approval by the voters. Why? Because the law has been framed and presented in a way that only an asshole would oppose.

Hi, I’m that asshole.

Nevada Question 1 is part of a multi-state campaign, and is strategically named in honor of a California murder victim, hence “Marsy’s Law.” It has enthusiastic and not unexpected support from all sorts of reputable groups on both sides of the political aisle. Groups that I respect. Virtually every entity that serves victims or wants to help victims has endorsed it.

It sailed through the Nevada legislature, which advanced it to the ballot for the voters. And while the ACLU and some criminal defense groups did oppose it on the record by proclaiming some of the same warnings contained in this article, the political landscape of the 2018 election looks to lean decidedly in support of passage. That’s mostly because the measure’s been distilled by its proponents as merely giving the same “rights” to victims as the system seems to give to criminals. And who would dare deny a victim his/her rights? They’ve already been victimized; why would we deny them their “rights,” too? 

Yet, listening to any of the pro-Question 1 groups who appear on TV news, and who get accolades and shout-outs during National Crime Victims’ Rights Week from every city council dais, it’s unclear whether any of them have read the entirety of this very long constitutional amendment. If they had, there would likely be a lot more questions and concerns than hosannas. I mean, we’re rewriting a part of our state’s founding document here. 

For instance, for the same reason that juries can’t be comprised of the victim and his family members, even if they’d really, really like to be in the jury box (see: our Sixth Amendment right to have an impartial jury), we aim to limit the influence of vested people when it comes to the rights of the accused. Simply stated, at the core of every right already given is the duty to make sure that right isn’t diminished by a party with a contrary motive. Marsy’s law claims to be a referendum on whether we care about victims — which, of course, we do — but in fact it aims to unfairly tilt the scales of influence towards involved, vested victims.

There are serious implications here. Before a person votes on changing the Constitution, perhaps the consideration of a few more words than “(Happy face emoji) innocent victims. (Poop emoji) bad guys. Yes on 1!” is appropriate. And like any nationwide campaign to change the legal status quo, Marsy’s Law should, in part, be evaluated on where it comes from and why it’s come to be. The website for the measure recounts the backstory, and that’s as good a place as any to get at what is really going on here.

History

In 1983, a California woman named Marsy Nichols was murdered by her ex-boyfriend. Her family was understandably devastated. And for decades since, the wealthy Nichols family has been going state-to-state touting (and funding) some version of what is now on the Nevada ballot in 2018 as Question 1. 

Why does the family think this law deserves adoption in every state (and ultimately, federally?) Would the law, if in place in California at the time of her death, have helped or saved Marsy Nichols? Unequivocally, no. In fact, though it is named in her honor, this law is not about Marsy. To be more precise, it should be called “Marsy’s Parents Felt Disrespected and Hate the Criminal Justice System Law.”

In Marsy’s case, the ex-boyfriend was arrested and charged. The judge considered the facts and afforded him his Constitutional right to be free on $100,000 bail while the charges were pending. He had the ability to post bail and did so. He was released pending the hearing. Marsy’s parents apparently weren’t informed of the bail hearing. They later ran into the accused at a supermarket, and they didn’t like seeing him.

One-hundred thousand dollars is a lot of money today, and it was a lot in 1983. The judge knew the facts.

The fact that the parents of the murdered girl didn’t want the accused person to make bail wouldn’t have changed things much, even if they'd been able to say so beforehand. (I’d imagine the parents would have opposed setting any bail.)

Later, there was a trial, and the man charged was convicted of Second Degree Murder. He was sentenced to 17-years-to-life, and died in prison. And yet the Nichols family remained so upset that the guy was permitted to post bail before his conviction (as guaranteed under the law) that 34 years later, they are still conducting a national campaign to change state constitutions to try to “honor the dignity” of… themselves.

To nutshell it further, this whole movement to change our Constitution, funded by Marsy’s very wealthy family, started because they didn’t feel it was fair that the bad guy (who was presumed innocent by law) got to be out on bail. That’s it. That’s the entire story behind “Marsy’s Law.”

And who can blame them? Not this asshole, that’s for sure. Victims have every right to want those who have victimized them to suffer. To be denied rights. To be held in custody forever (or as long as existing law allows). Despite my opposition to the approach of this measure, I feel for them. It’s not fair to them. It’s not fair they were victimized. It’s not fair that their account of things was initially challenged, when it turned out to be exactly what happened. And it certainly wasn’t nice that the treatment they received by the defense attorney (or the prosecuting attorney or the judge or the parole board) was what they considered to be disrespectful. Why should they have to suffer the indignity of seeing the man who might have killed their daughter while they’re shopping for groceries? 

Victims want justice, and they want to feel safe. That’s valid. The thing is, the courts can't just blindly guarantee any and all wishes of the victims, including their safety, short of keeping all accused persons locked up from the instant they are arrested. Victims can and should seek Protective Orders if there's justification, but those can be violated (though not without independent consequence).

The point is, rights shouldn’t work by virtue of denying or diminishing other people’s rights. The presumption of innocence is more than a knowing wink for the accused. The conviction of innocent people is a measurable quantity. The inequities in incarceration, especially for people of color and the lowest economic strata, are a matter of statistical truth. Guilty people sometimes get bail. Guilty people get fair trials. It’s how the whole system stays legit.

And yet, Marsy’s Law is being touted (on the website and by other sources) as merely “giving victims of crime rights equal to those already afforded to the accused and convicted” and the far less subtle “we can all agree that no rapist should have more rights than the victim.”

It’s probably very hard hearing about the “due process” rights of the person a victim’s family is certain was responsible for a crime. But due process is a necessary check on the government’s power to incarcerate or even execute a human, and to suggest that the accused and the convicted have a wonderful bouquet of rights that somehow tilts the justice scales in their favor is an outright fallacy. 

What's right on rights

Due process, and more importantly, all the attendant rights afforded people accused of crimes, are already tenuous as it is. They are almost theoretical. What possible beads on an abacus do you slide to get to a point where you think “rapist rights” are an equal quantity to “victim rights?” It’s specious to even present it this way.

Rights are given to defendants to keep a system fair and protect the accused against government encroachment. The vast majority of incarcerated people aren’t having Prune-o & Porridge parties celebrating the fact that they have a Fourth or Fifth Amendment right. Indeed, even when an accused person tries to invoke a right, they still have to make it past the prosecutor’s zealous opposition that they get any relief. And then there’s the elected judges in Nevada who must be convinced to, say, suppress information on that murder weapon – and yeah, that doesn’t happen very often, either.

So when going through the twenty-three separate provisions of the ballot measure (which may be a record for a Constitutional Amendment, but feel free to check me), the predominant theme is that the victims want to influence all proceedings to a much greater extent. “Rights” is the word used, but I think it’s more about frustration that they don’t have the control they’d like to have over the process.

Victims (and families of victims) already have a voice in court proceedings without this Constitutional Amendment, and because of their status and injury that voice is often very powerful. In Nevada, victims get to address the court at a defendant’s sentencing and, by statute, they also get to be the last voice the judge hears. That is formidable.

And while victims are subject to cross-examination, even at sentencing, rare is the occasion the intrepid defense attorneys dare question the facts or context of those statements. It happens, for sure, but the general opinion and attitude day in and day out of Nevada courtrooms is “leave the victim alone – let him say his words.” The fear, of course, is that if the defense attorney comes across as a bully, it will create even more sympathy, which will sway the judge against the defendant even further.

Sadly, there are no statistics on the impact of victim statements upon sentences — but there is anecdotal evidence. A compelling victim able to articulate trauma or hurt can make a difference with an empathetic, elected judge who might have been teetering between probation and hard time. I’ve seen it happen. I’ve read the transcripts. Statements can be brutal even for non-violent crimes. Victims are hurting and they often view this opportunity to vent and plead for their perspective of justice as their last chance to feel whole, or good, or better. They usually just want to see the person who created their distress suffer in prison. That’s the standard. Even though sometimes there’s talk of forgiveness and healing, the sum-up still often sounds a lot like a desire for revenge.

I’ve often seen cases in which the victim is very articulate and has been gravely affected by crimes big and small. It is by nature a subjective “wildcard” in what is supposed to be an objective process – blind justice and all that. By the same token, I’ve seen poorly educated, addicted, mentally ill and other marginalized defendants from our society unable to speak up for themselves; unable to counter the narrative from the victim that this is the worst thing that ever happened to them – which may very well be true.

The question that seems lost these days is: should a person’s custody status or punishment even be influenced by the subjective, articulated harm to the specific individual? Should the judge care? Should the victim’s pain factor into the equation of objective, even-handed justice? And what of society’s interest? Isn’t the supervision and rehabilitation of a human being a more lofty and productive goal than a year or more in prison? Marsy’s Law suggests that none of that is as important as the victim’s feelings, based solely on their status as victim. And if we pass the law, that position gains great force in how things will be done.

The framers of this ballot measure claim there needs to be some sort of ethereal “equality,” but how does the proposal make things equal? Only one party in a murder trial is facing incarceration or death at the hands of the government. And that’s the main distinction. A victim is not subject to institutionalized loss of liberty. Everything in this ballot measure can be broken down into niceties and a perceived breakdown of participation or the loss of the “voice” of the victim. It speaks volumes that the victims’ voices in this piece of legislation are the only voices really being heard.

When new laws with harsher penalties are passed with little question, it is also the victims’ voices that are heard. There is no coalition of pimps, hucksters, rapists and murders getting equal time to present counterpoints. Indeed, most laws are victim-driven. Most judges are elected on platforms of being “tough on crime.” Tough on crime of course being code for “hard on defendants.” Most legislators are lambasted in campaigns for being “felon-friendly” for even the most modest reforms. The victim voice in the modern era is not muffled to the extent that any Constitution needs to be changed.

Back to how we should see Marsy's Law

Which, finally, brings us to the explicit questions: what exactly does Marsy’s Law ask for, how is that different from what already exists on the books and why am I still being such an asshole?

The first “right” proposed is for any victim “to be treated with fairness and respect for his or her privacy and dignity and to be free from intimidation, harassment and abuse, throughout the criminal or juvenile justice process.” But how can a Constitutional amendment bestow fairness and respect or dignity? And more importantly, what are the implications of a victim’s desire to enforce these new “rights?” Is cross-examination a pathway to “intimidation?” Does the arrival of a licensed defense investigator to ask pertinent questions constitute “harassment?” Does respect and dignity mean that the burden of proof must shift to the defendant because to challenge the accusation is obviously a disrespectful abuse of the victim? Is this measure actually a stepping stone to try to fundamentally change our entire system of justice?

Who really knows? The language here is remarkably broad and ambiguous, but darned if someone isn’t still trying to make it into a new set of Constitutional rights! Like, “RIGHTS!” Like, Second Amendment! Like, these rights need to be secure in my hands where no one can pry them away even after they’re cold and dead.

One provision of the ballot measure provides that “A person may maintain an action to compel a public officer or employee to carry out any duty required by this section or any statute enacted by the Legislature pursuant thereto.” Whoa! What does that mean? Another provision of this ballot measure states “The Legislature shall by law provide any other measure necessary or useful to secure to victims of crime the benefit of the rights set forth in this section.” Yikes! What else is mandated and soon coming down the legal turnpike?

Because, in the end, when you prioritize the feelings of the victim and toss around ambiguous terms like respect and dignity and privacy and fairness to the party aggrieved — and when the party aggrieved thinks that these “rights” are affected when the defendant (and his counsel) try to fully exercise a Sixth Amendment right to cross-examination; or the statutory right to discovery of evidence and investigation; or the right to be free from Cruel and Unusual Punishment; or any other cornerstones of our existing criminal justice system — there is a conflict. What happens when rights collide? Who’s right prevails? Why would we allow such ambiguity into the objective law?

Look, I can go through every part of this long, long ballot measure and tell you where the concern presented is likely already addressed by another existing law or where it simply isn’t practical to American jurisprudence to have such a measure.

I mean if it’s merely about the safety of the victim and/or the victim’s family if accused and possibly guilty people get bail, guess what? That’s already a factor explicitly outlined by law in the consideration of bail. If it’s about getting notice of hearings, that’s also already in the Nevada Constitution. Victims get to address the court at sentencing, as well address parole boards, and victims are entitled to submit claims of restitution. It’s all in the law.

But the laws that exist are also framed in very specific ways that don’t enable abuse, or make way for the uncertain erosion of the values of innocent until proven guilty, and fair and humane treatment of the incarcerated, that we claim to hold dear.

If victims are afraid that enough people aren’t going to prison, one might suggest that our statistics say otherwise. The U.S. has 4 percent of the world’s population, but more than 20 percent of the world’s incarcerated. If our country’s prison population was a city, it would be the seventh largest city in the U.S. (between Philadelphia and San Antonio). For perspective on how many people that is, Las Vegas is the twenty-eighth largest city.

For all the groups that want to help victims, and again, no right-thinking person should be opposed to that goal, we should spend more time and money and law-making on healing, on treatment, on victim support and assistance programs, on the prevention of crime. We should be talking about a better education system. Better job training. Better means of re-acclimating prisoners into society once they’ve done their time to diminish recidivism borne from desperation. Society and the individual victims all benefit from all these approaches.

If victims are feeling that people in the system are treating them poorly, then advocate that better people get elected, appointed or hired.

This ballot measure taps into everyone’s desire to transport the victim back to a time before the bad thing happened, but the Constitution is not a time machine. Once you start to break it down, this effort to placate the feelings of a sympathetic group at the expense of one that is often loathsome is contrary to what makes America great. We have a criminal justice system in place not as a placation but as a necessary safeguard protecting all citizens accused — because any citizen can be accused.

We grant rights not because we fear others are getting more, but because we don’t want anyone to get less. While some of the measures in the proposed law warrant consideration in larger conversations, and maybe even in some very narrowly tailored tweaks to existing laws, the Nevada Constitution is not the forum for codifying feelings. Doing it this way is a mistake.

Dayvid Figler is a private criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with Murder for the Clark County Special Public Defender's office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court Judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered Program. He is a Nevada Arts Council Fellow in Literature and has written extensively about Las Vegas culture. 
Follow him on Twitter: @OyVegas
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