Marsy’s Law is a solution without a problem. Our criminal justice system is often described as a three-legged stool — two advocates arguing about the facts and the law before a neutral judge. This system has worked well over centuries to discover the truth and lead to a fair result.
Marsy’s Law, however, seeks to add a fourth leg, placing a thumb down squarely on the side of a victim. As a result, the advocate for the defense would face a prosecutor and an advocate for the victim, perverting the presumption of innocence and skewing the results. The consequences would be more time spent in pretrial detention by defendants who are presumed innocent, as well as more eligible defendants being denied probation, shock probation and parole.
Kentucky already has significant provisions to ensure victims have rights in court. The Victim’s Bill of Rights is found in KRS 421.500 and includes:
▪ The right to make an impact statement for consideration by the court at the time of sentencing. Contrary to what Eileen Recktenwald of the Kentucky Association of Sexual Assault Programs stated in her op-ed, victims are guaranteed the right to speak at sentencing hearings.
▪ The right to information from prosecutors about when criminal-justice proceedings are occurring, including scheduling changes.
▪ The right to be consulted by the prosecutor on the disposition of the case.
▪ The right to have a victim’s advocate accompany the victim to court proceedings.
A constitutional amendment is the wrong mechanism for changing the law. We should keep the Victim’s Bill of Rights, which can be altered easily, rather than permanently embedding certain rights in the state constitution.
Senate Bill 175 was Kentucky’s version of Marsy’s Law proposed in 2016. Several dangerous provisions in that proposal could produce unintended consequences.
For example, one provision gives a right to be “respected and protected by law in a manner no less vigorous than the protections afforded to the accused in the criminal and juvenile justice systems to … be heard in any proceeding involving release, plea, sentencing, disposition, parole, and any proceeding during which a right of the victim is implicated.” Another one gives the victim’s attorney the right to “seek enforcement” of the rights.
Does this mean that if the judge sets a defendant’s bond at $5,000, the victim’s attorney is allowed to argue against it, and then appeal the judge’s decision? Would the victim’s attorney be permitted to sit at counsel table during a trial and to give an opening and closing argument or cross-examine witnesses?
Would the victim’s attorney be able to oppose the prosecutor’s plea offer? If the judge decides to put the defendant into treatment for a drug addiction, could the victim’s attorney argue against that in court and then appeal it?
An innocent person charged with a crime could be held for years pending trial due to Marsy’s Law.
The op-ed implies prosecutors are failing to protect victims. Rather than trusting prosecutors, victims want their own personal attorney to be in a position that is equal to or superior to the elected prosecutor.
This proposal would alter significantly the adversary system as we know it. Let there be no doubt about it. The system we have now in place, which has operated under the present Kentucky Constitution and functioned well since the late 1800s, would be turned on its head in ways we cannot imagine.
No one opposes providing redress to crime victims. However, Marsy’s Law is a radical proposal rife with potential conflicts and innumerable problems. Our state constitution has served us well; let’s not tamper with it.
Ernie Lewis is president of the Kentucky Association of Criminal Defense Lawyers.
At issue: July 14 commentary by by Eileen Recktenwald, “Give crime victims right to speak in Kentucky courts”