On Election Day, the Kentucky legislature will ask voters a yes or no question:
“Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?”
Voting “yes” would change the state’s constitution, guaranteeing victims have rights like those accused of a crime. But the Kentucky Association of Criminal Defense Lawyers says the wording of the ballot question is misleading, and Tuesday they asked a state judge to block the referendum from happening.
Kentucky is one of six states — including Florida, Georgia, Nevada, North Carolina and Oklahoma — with questions like this on the ballot in November. It’s part of a nationwide effort known as “Marsy’s Law.” The campaign is named after Marsalee Nicholas, a California college student who was murdered in 1983. One week after her death, the man accused of killing her was let out of jail on bail. Nicholas’ mother did not know that and was confronted by him at a grocery store.
So far, 15 states have amendments like this in their constitutions, according to Marsy’s Law for Kentucky. Other states have balked at the proposals for fear of unintended consequences.
Kentucky’s version of the proposed constitutional amendment — to be voted on Nov. 6 — would guarantee crime victims a right to be notified of and present for most court proceedings, just like the person accused of the crime. It would also guarantee victims the right to be heard by the judge in any hearing involving a release, plea or sentencing.
Kenyon Meyer, an attorney for the Kentucky Association of Criminal Defense Lawyers, says in a system based on the presumption of innocence the amendment would require the judge to recognize the victim of a crime before the process had determined if a crime took place.He noted the constitution lets the Kentucky Supreme Court set rules for court hearings. He said this amendment would take away that authority, giving it to the legislature in some cases and would “eviscerate our constitutional separation of powers.”
For example, in some trials witnesses are kept out of the courtroom so they won’t be influenced by the testimony of others. The constitution would supersede that rule if a victim has a right to attend all court hearings.
Meyer noted none of those issues are reflected in the question on the ballot.
“We think if the constitution — which is the most important document in our judicial system — is going to be changed, the people should know what the change is,” Meyer said.
Franklin Circuit Judge Thomas Wingate appeared to agree. He read the proposed ballot question and remarked: “I mean, who would vote against this? There would be no one who would vote against this. Is it really a fair statement of what’s happening?”
Attorney Sheryl Snyder said the ballot question is fair. Snyder represents Marsy’s Law for Kentucky, a nonprofit group advocating for the changes that launched a statewide TV advertising campaign last month. Snyder said state law allows the legislature to write the ballot question that they “think states the substance of the amendment.”
“Our argument is simply the court should defer to the General Assembly’s formulation of the ballot question,” he said.
Snyder also said it was “preposterous” to assert the amendment would require the court to determine who a victim is before trial. And he said the Kentucky Supreme Court would protect its right to determine rules of procedure. He noted state law already includes a “victim’s bill of rights,” and this referendum would just put those rights in the state constitution.
Wingate appeared to agree with Snyder that some of the potential consequences were being overblown.
“I don’t know if the sky is falling,” he said. “Really we are doing a lot of this already. I mean lot of people don’t realize it, but we are.”
Wingate said he would rule in the case within 10 days. The election is Nov. 6, less than a month away. Whatever the ruling is, attorneys from the losing side are likely to appeal to the Kentucky Supreme Court to make a final decision before Election Day.