Our justice system is imperfect, and often fails both those accused of crimes and those who have been victimized. Real reforms are needed on both ends.
Yet, Kentucky’s General Assembly is set to vote on hollow platitudes and empty promises in the form of Marsy’s Law.
This bill seeks to amend our state’s constitution to create an entirely new set of “rights” and standing for victims or survivors of alleged criminal activity. But the bill promises to do so without any detail, funding, resources or direction.
Marsy’s Law proposes to give “standing” to victims in criminal cases, meaning that victims could possibly have an advocate or attorney make arguments to the court, in addition to prosecutors and defense attorneys. Without resources or funding, this will further exacerbate the economic unfairness and injustice already inherent in our justice system.
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Victims or survivors with money and resources would be able to hire attorneys to advocate for their interests, while victims and survivors without means to hire a private attorney would be unserved.
This set of rights also would often come into direct conflict with the state and federal constitutional rights afforded to criminal defendants who are innocent until proven guilty — like the right to due process, the right to a speedy trial, the right to be informed of and question the evidence against him or her, and the protection against cruel and unusual punishment.
Again, the proposed bill offers no guidance on how courts across the commonwealth should reconcile any potential conflict (for instance, if a victim opposes a particular trial date but a defendant’s attorney requests more time for testing or investigation.) This sets up confusion and disarray that will have to be dealt with one case at a time in trial and appellate courts, further clogging an already over-burdened system.
Additionally, Marsy’s Law’s founder and supporters often repeat that victims need notification when suspects or offenders are released. Yet individuals in Kentucky already have access to this information via resources such as VINELink and Kentucky’s Online Offender Lookup.
Using these resources, victims and survivors will receive notification when an inmate is moved, transferred, released or scheduled to see the parole board. Marsy’s Law will not change or improve on this existing service.
The push for Marsy’s Law in Kentucky is part of a multi-year, national campaign. In states where it has been adopted, the people on the ground and in courthouses every day report that it has not had the desired impact.
In North Dakota, for instance, prosecutors report that cases are taking longer to litigate and that the law was an “unfunded mandate” to prosecutors’ offices. Prosecutors in South Dakota also expressed concern over the unknown total costs of implementing the law.
Victims’ rights groups in other states have expressed concern that the law does not treat victims as individuals but rather proposes a one-size-fits-all approach that is not practical in real life.
Marsy’s Law has been the subject of lawsuits in other states, and very well may be if it passes in Kentucky as well.
The ACLU recognizes that real reforms are needed, and applauds those governmental officials who support them — reforms such as providing funding to test the backlog of sexual assault kits, allocating resources to support victims’ advocates who are already employed in prosecutors’ offices across the state, and supporting efforts to include survivor voices in justice reform policy discussions.
Marsy’s Law does none of these. Rather, it offers an unfunded mandate and empty promises to the many people who feel unheard in our justice system and provides no real or tangible reforms.
Its effect will be to further burden, muddy and confuse an already overwhelmed system, which will hurt victims and defendants alike.
Heather Gatnarek is an attorney with the ACLU of Kentucky.