Election 2020

It seemed like such a simple 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?

More than 60 percent of Kentuckians said yes to that question in 2018. But now, they’re being asked to consider it again — in the amendment’s full, 570-word glory.

Marsy’s Law, which would enshrine crime victims’ rights in the state’s constitution, has become a divisive issue in Kentucky over the last two years, thanks to a massive advocacy campaign, legal action ending in front of the Supreme Court and coordinated pushback from some unlikely allies.

Supporters of Marsy’s Law For Kentucky say this is an absolutely necessary step that would put Kentucky in line with the majority of states that have constitutional rights for crime victims. Opponents say it’s an unnecessary, costly measure that will slow the wheels of justice and upset our system of due process.

What’s on the ballot

Marsy’s Law is named after Marsalee Nicholas, a college student murdered in California in 1983. Her brother, billionaire Henry Nicholas, founded Marsy’s Law for All, an advocacy group that works to add victims’ rights to state constitutions. Since Nicholas started Marsy’s Law for All in 2009, 20 states now have some version of a Marsy’s Law in their state constitution.

In Kentucky, crime victims already have a slate of rights once charges are filed in a case. Victims have a right to be notified by the prosecutor “if possible” about the status of the criminal prosecution, and be consulted on certain aspects of the proceedings.

Victims have a right to submit a written impact statement, and in certain cases, have a right to a speedy trial.

Under Marsy’s Law, victims would also have the right to be notified of any court proceedings, and attend and speak at many hearings — including those related to release of the accused, when they enter a plea, during sentencing or “other matter involving the right of a victim.”

Victims would have standing to assert those rights if they’re not offered. Marsy’s Law lays out that the victim, their lawyer or the Commonwealth’s Attorney could ask the judge to enforce the requirements and “afford a remedy for the violation of any right.” It does not specify what the remedy would be, but lawsuits are specifically excluded.

Emily Bonistall Postel said she has talked to hundreds of crime victims across the commonwealth as director of outreach for Marsy’s Law for Kentucky. She said Kentucky’s Crime Victim Bill of Rights in its current form is unevenly implemented, and there’s little a victim can ask for in response.

“Victims can’t assert those rights if they are violated,” she said. “Rights without remedy are not really rights at all. It just is kind of fluff. It sounds good that we have them but the way that the language is, there’s no teeth to it.”

She said Marsy’s Law will “raise the bar a bit” for prosecutors who do not typically include victims in the process. She acknowledged that some prosecutors likely want to do a better job of notifying victims, but are hampered by a lack of time and resources.

Marsy’s Law comes with no funding attached, but she believes it will “give them the push they need to demand more resources” for victim advocates and similar services.

Victims rights “have not been a priority,” Bonistall Postel said. “It hasn’t, and it hasn’t had to be. Marsy’s Law is the first step for voters in our state to say, this should be a priority.”

Marsy’s Law for Kentucky has many powerful supporters, including Attorney General Daniel Cameron and state Sen. Whitney Westerfield, the chair of the senate judiciary committee.

“Too often, victims are ignored … or what they have to say is reduced to a written document that gets stuck in the back of a file folder somewhere and not paid much attention to,” Westerfield said. “We can change that and we can do that in a way that protects those victims and their rights while still protecting the rights of the accused.”

Bonistall Postel said Marsy’s Law wants victims and offenders to have equal rights, but not the same rights.

“It doesn’t mean that a judge would have to give preference to the victim’s rights,” she said. “It doesn’t mean that … a victim’s rights would be considered and weighed more heavily than a defendant’s rights. It’s just that they should both be considered when making those decisions.”

Diverse opposition

In an op-ed opposing Marsy’s Law, representatives from the ACLU of Kentucky, the state Tea Party, as well as some elected officials agreed that additional resources may be needed for victims’ services. But, they wrote, that can be done without changing the state constitution.

“If victims feel uninformed or unsupported by [victim] advocates, the advocates should be provided with additional resources,” they wrote. “If the laws we have in place aren’t serving victims, let’s amend our laws, not our Constitution.”

The Kentucky Association of Criminal Defense Lawyers challenged the ballot measure in court in 2018, a suit that eventually ended up in front of the Kentucky Supreme Court. The court ruled after the election that the language on the ballot was overly vague, and nullified the results of the vote.

KACDL filed a lawsuit again this summer, challenging the procedure of how Marsy’s Law came to be on the ballot, and the constitutionality of the amendment itself. Last week, Franklin Circuit Court Judge Thomas Wingate ruled that the amendment was properly filed to appear on the ballot.

But Wingate declined to review the constitutionality question.

“Marsy’s Law has yet to be ratified by the electorate,” Wingate wrote. “Thus, until enactment, it is merely a hypothetical amendment, and this Court is prohibited from issuing advisory opinions on hypothetical issues.”

KACDL president Angela Rea said they are concerned that Marsy’s Law will fundamentally change the justice system. For starters, she said, it may put prosecutors in an untenable position since, per the amendment, the victim, their lawyer or the prosecutor could ask a judge to enforce victim rights.

“Our prosecutors are objective people whose mission is to seek justice,” she said. “They’re not a lawyer for the victim. They aren’t there to get what that person wants in court. They consult with them, but their overall mission is to seek justice. I think this confuses that role.”

She said this provision will also exacerbate disparities in treatment between victims who can afford a lawyer to defend their rights versus those who cannot.

The amendment says that it should not “be construed as altering the presumption of innocence in the criminal justice system.” But Rea said she’s worried that’s exactly the effect it will have.

“We have to be very careful, because we have a person who is presumed to be innocent of charges,” said Rea. “So when we start with constitutional amendments that purport to equate victim and defendant from the jump…when we accord them this constitutional status of a victim, we are turning the presumption of innocence on its head.”

Many opponents of Marsy’s Law are worried about the unintended consequences of the amendment. Other states have dealt with ongoing lawsuits, questions about transparency and confusion in the court system as they implement their versions of Marsy’s Law.

Bonistall Postel acknowledged that passing the amendment will be just the beginning. She said she anticipated the state would need to create an implementation team to ensure Marsy’s Law for Kentucky does what it sets out to do.

Clarification: This story has been updated to better reflect Bonistall Postel’s comments about implementation. 

Contact Eleanor Klibanoff at eleanor@kycir.org. 

Eleanor Klibanoff is a reporter with the Kentucky Center for Investigative Reporting.