The Missoulian is among the Montana newspapers and other organizations challenging Marsy’s Law in court. Here’s why:
The constitutional initiative approved by voters last November describes Marsy’s Law as a “victims’ bill of rights” that adds 18 broad new provisions to the Montana Constitution. Some of these new laws are merely duplicative of rights already protected by that document. Others, however, directly conflict with other existing constitutional rights – such as the right to know and the right of the public to participate in the justice system.
If these rights are subverted, the press cannot do its job of informing the public of important criminal proceedings. In fact, neither the news media nor the larger public will be able to access public information that helps us hold local government accountable.
The new set of constitutional “rights” in Marsy’s Law promises to create a slew of problems not only for news media, police and prosecutors, but for defendants and victims as well. Most alarmingly, if Marsy’s Law is upheld in court, it will undermine the very foundations of the Montana Constitution – and leave all Montanans poorer for it.
That is why the American Civil Liberties Union of Montana, Montana Association of Counties, Montana Association of Criminal Defense Lawyers, a county attorney and a victims’ rights advocate have petitioned the Montana Supreme Court to review the law. And it’s why a number of newspapers in Montana, including the Missoulian, have joined the legal battle as a “friend of the court.”
Montana voters passed Marsy’s Law by a strong margin: 66 percent. It was scheduled to take effect at the beginning of July, but the court agreed to delay its implementation at least until the state attorney general and secretary of state have a chance to respond.
Notwithstanding the strong voter support, we believe the court will find this initiative unconstitutional because it violates the long-established rights of Montanans and severely restricts the freedom of the press enshrined in the First Amendment of the U.S. Constitution.
News organizations in Montana are already running into problems. Law enforcement personnel in several Montana counties are weighing whether they can release even the most basic, most important crime information – such as the names of murder victims. The current practice is to release the identity of the deceased after family members have been notified. The new law, however, requires law enforcement to go to extraordinary, time-consuming lengths to local additional “victims” to notify.
The law has an overly broad definition of “victims,” each of which is entitled to notified throughout a criminal proceeding. Distant relatives, friends and even business entities and corporations are granted the right to notification of even the most minor proceedings involving even misdemeanors crimes, such as shoplifting. Meanwhile, each “victim” is also allowed to refuse to be interviewed or deposed.
And this notification promises to take up a great deal of public time and resources, although just how much it will cost is still unclear. Police and prosecutors are still struggling to gauge just how much to expand their budgets in order to comply with the new notification requirements.
At the very least, it will take longer to release public information, as public officials try to locate as many victims as possible and screen all documents to make sure make sure their release doesn’t violate the sometimes conflicting terms of Marsy’s Law. That’s an impossible position in which to place these public servants.
In particularly sensitive cases involving allegations of sexual assault or domestic violence, the notification requirements could also cause real and lasting harm. Victims of rape may not want all their friend and neighbors kept informed about every proceeding in their criminal case – but the new law says they must.
On the defense side, the new law directly violates the rights of those accused of crimes, such as the right to face one’s accuser in court. All defendants are presumed innocent until proven otherwise; Marsy’s Law treats them with a presumption of guilt. For instance, it provides victims the right to be “present” before someone accused of a crime may be released from jail. Imagine the shoplifter who is forced to remain in jail until a corporate representative could be brought in to Montana to be “present.”
Common sense tells us this is overkill. Legally, the ACLU points out that the initiative approved by voters would change multiple sections of the Montana Constitution – at least eight – when an initiative may amend only one section at a time. Montana voters should have been presented with at least eight initiatives to consider.
But that wasn’t taken into account because Mary’s Law wasn’t made for Montana. It is the result of a campaign begun by a wealthy California man after his sister, Marsy Nicholas, was murdered, and family members bumped into the person accused of her murder a week later at the grocery store.
Henry Nicholas has since spent millions on campaigns to implement Marsy’s Law in each state, starting with California and proceeding to Montana, where he spent more than $2 million to push Constitutional Initiative 116. That campaign focused on aspects of the justice system many consider unfair to victims, without acknowledging that there are less drastic ways of resolving these concerns – and without noting that the proposed changes would trample the rights of others.
Journalists go to great lengths on the public’s behalf to expose such problems, to keep the light shining on every aspect of public safety and law enforcement, from initial victim reports through arrests and incarceration.
Our justice system is set up to serve the public, but the public can only determine how well it is being served if it able to observe and participate in the process. Marsy’s Law would throw much of Montana’s justice system into the dark. It must be thrown out instead.