Up next to look at for ballot questions in the 2016 South Dakota election is Constitutional Amendment S. Amendment S is referred to as Marsy’s law and is being touted as a constitutional amendment to expand the rights of crime victims. South Dakota has constitutional protections for the accused, but this particular amendment would create constitutional protections for victims.
This post will look at some of the basics of Amendment S. I probably will blog more about this as time goes one; mostly due to how large the actual proposed amendment is (both large in size and scope). Due to the size of the Amendment I will keep this post at a high-level, and save looking at specific portions of Amendment S to future blogging.
Marsy’s Law originates in California
Marsy’s Law began in California by billionaire and philanthropist Henry Nicholas. Back in 1983 Nicholas’ sister, Marsalee, was shot and killed by her ex-boyfriend. A week after that incident Nicholas’ mother had walked into a grocery store after visiting Mary’s grave; only to be confronted the ex-boyfriend, who at this time was accused of the murder. The mother had no idea the accused murderer had been released on bail or that it would be possible to meet him on the streets.
Moving forward two decades Nicholas founded a campaign to get Marsy’s Law passed in California. Marcy’s Law was created as a bill of rights for crime victims. In 2008 the voters of California passed Mary’s Law as an amendment to state constitution. After the passage of Mary’s Law in California, Nicholas created Marsy’s Law for All. This new group focuses on providing “expertise and resources to victims’ rights organizations nationwide which would ensure victims’ rights for all Americans.”
Here is a quote from Nicholas about Mary’s Law from the groups website:
“If any good can come of something this horrible – the loss of my sister and the losses of other families of crime victims – it is that these violent acts served as a catalyst for change,” Dr. Nicholas said. “Marsy’s Law will provide for a more compassionate justice system for crime victims in California and make that a constitutional guarantee. Now the momentum can be put behind a U.S. Constitutional Amendment so that the rights of all crime victims, anywhere in America, can be protected.”
Marcy’s Law has also been passed by this group in Illinois. There are currently seven states, including South Dakota, which are being targeted to get Marcy’s Law passed. The map below shows the current states being targeted with Marsy’s law and how the group rates states for victims rights (click to make bigger):
Looking above it seems the western states generally already have better crime victims rights in place.
Jason Glodt of Pierre is the State Director for Marsy’s Law for South Dakota. Glodt ran the campaign to get Marcy’s Law on the South Dakota ballot as Amendment S. The petition required 27,741 good signatures. Glodt turned around 53,000 signatures on November 3rd. Of those signatures the Secretary of State office certified 34,431. Later this summer I plan to catch up with to find out more about why the people of SD should consider passing Marcy’s Law.
Text of Marcy’s Law
Marcy’s Law would add a new section to Article VI of the South Dakota Constitution. Article VI is the South Dakota Bill of Rights. The text of Marcy’s Law is quite long, with 19 sections, so I will not include in this post. I posted the text of Marcy’s Law back in December of 2015 and the Marcy’s Law website also has a PDF of the proposed law.
The Attorney General’s office has provided this explanation for Amendment S:
Title: An initiated amendment to the South Dakota Constitution to expand rights for crime victims
Currently, state statutes provide certain rights to crime victims. This measure expands these rights and places them in the State Constitution.
Under the amendment, the rights provided to a victim generally include: protection from harassment or abuse; the right to privacy; timely notice of all trial, sentence, and post-judgment proceedings including pardon or parole; the right to confer with the attorney for the government; and the opportunity to provide input during all phases of the criminal justice process. Victims will be given written notification of their rights.
The rights may be enforced by the victim, the victim’s attorney or representative, or the attorney for the government. They may be enforced in any trial court, appeals court, or other proceeding affecting the victim’s rights.
The definition of “victim” includes a person who suffers direct or threatened harm as the result of any crime, attempted crime, or act of juvenile delinquency. It also includes that person’s spouse, children, extended family members, guardians, and others with a substantially similar relationship.
If a victim’s rights provided by this amendment conflict with a criminal defendant’s rights under the South Dakota and United States Constitutions, a court may determine that the defendant’s rights take priority.
Pros of Amendment S
I believe this small write-up of why to get involved on the Marcy’s Law South Dakota page explains the pro side:
Everyday, hundreds of people in South Dakota suffer at the hands of criminals.
Then they suffer again – as victims, thrust into the complex judicial system and to navigate an unfamiliar court process. Marsy’s Law proposes a Constitutional Amendment securing permanent, enforceable rights of victims.
This post from the Marcy’s Law for South Dakota Facebook page expands further:
Did you know crime victims in South Dakota cannot get a copy of any report of law enforcement that is related to the crime, unless the State’s Attorney or judge says they can have it? This is wrong. Current law protects criminal offenders while re-victimizing the people they hurt. Victims deserve to have access to reports about the crimes committed against them and they shouldn’t have to get permission to get the report. Many states have already given crime victims the right to see such reports, it is time South Dakota victims have the same rights. Marsy’s Law will give all crime victims the right to have such reports without getting permission from anyone. Vote Yes on S in November!
Some other tidbits from the Marcy’s Law for South Dakota Facebook page:
- After reporting her rape 4 years ago, Andrea was never told by police whether or not her rapist was charged or even arrested. From this FB post. Includes a link to YouTube video.
- South Dakota is one of just 18 states that does not have a constitutional provision protecting victims’ rights. From this FB post. Includes a link to an online petition to support Marcy’s Law.
- Victims of human trafficking in South Dakota do not have the rights they deserve due to a loophole in current state law. From this FB post. Includes a link to Sioux City Journal article
The Marcy’s Law campaign seems to focus a lot on the victims of human trafficking. There is an article on the Marcy’s Law website focused on the human trafficking “loophole” in South Dakota. Here is a portion of that article:
Victims of certain types of human trafficking are not considered “victims” under the current codified law in South Dakota. This is unacceptable. All victims of human trafficking deserve constitutional rights and Amendment S will close the loophole in current state law.
Under current South Dakota codified law, only certain people fall under the legal definition of “victim” which entitles them to certain victim rights under the statute. In fact, there are many serious crimes for which current law does not allow rights for victims, including crimes like simple assault, misdemeanor sexual assaults, intimidation, harassment, reckless driving, vehicular homicide, grand theft, identity theft, human trafficking or hate crimes. Every person harmed by a crime should be entitled to victim rights.
The article goes on to explain that the “loophole” has to do with how “force” is treated in state law. Force must be proven beyond a reasonable doubt for a victim of human trafficking to be treated as a victim, and have the full rights of a victim.
I plan to speak with Glodt in the next couple of months so I will end the pro section here. I am sure he will be able to give me more information as to why South Dakota voters should consider this lengthy proposed constitutional amendment.
Cons of Amendment S
I’m not finding an official group setup to oppose Amendment S yet. But the State Bar of South Dakota recently voted to oppose Marsy’s Law at a meeting in Sioux Falls. The Argus Leader has an article on the meeting. This from the article:
But opponents, including representatives from the South Dakota State’s Attorneys Association and the state association of criminal defense lawyers, stood to express their disagreement with the measure. They said it was unnecessary and would clog up the justice system, preventing victims from getting appropriate resources.
Three representatives then stood to oppose it, saying victims’ rights are already covered under statute and adding the amendment would balance the scales of justice unfairly against defendants.
“This is truly an idea chasing a problem that we do not have in our state,” Mark Meierhenry, a former South Dakota attorney general, said. “This is a philosophically dangerous idea … this is a step toward more vengeance, more unforgivingness, and toward private prosecution.”
Aaron McGowan, Minnehaha County state’s attorney and president of the South Dakota State’s Attorneys Association, said the measure would be counterintuitive as it would require state’s attorneys and victims’ advocates to spend more time following up with victims of petty crime, rather than those affected by more serious crimes.
Read the whole thing on the Argus leader website.
I believe there is some merit to the argument that a lot of resources, time and money, would be spent to enforce Marcy’s Law. I believe how Marcy’s Law will interact with the Public Safety Improvement Act (PSIA) needs to be determined. The PSIA was passed into law in 2013 as SB 70. PSIA is a program the Justice Department, Attorney Generals Office, and Governors office are quite proud of because fewer people are going to state prison. But there are still just as many criminals created under PSIA (if not more). Instead of going to prison there are more criminals on probation and the burden of paying for handling these criminals has been shifted away from the state and to the counties (without any revenue shift).
Angela Kennecke with KELO news recently highlight problems with the PSIA. In her article on the KELO website Kennecke brings forth many cases where those on parole are not being sent back to the penitentiary after repeated parole violations. In fact it seems pretty hard for a parolee to be sent back to the Department of Corrections.
That relates to Marcy’s Law because many of those parolees would be involved in crimes that would include victims covered under Marcy’s Law. How will the PSIA presumptive probation program work in conjunction with Marcy’s Law? It appears from Kennecke’s article that the counties are already having problems handling all of these parolees and serving justice. Is Marcy’s Law going to make the situation worse? Should PSIA be fixed before anything such as Marcy’s Law should be considered?
I don’t really have any answers to my above questions. When I catch up with Glodt I plan to ask him not just about the inner workings of Marcy’s Law; but more importantly I plan to find out how Marcy’s Law would interact with PSIA.
My initial thoughts of how to vote
I have to admit I am VERY weary of any constitutional amendment, especially one as long as Marcy’s Law. But in theory Marcy’s Law sounds good and I support the idea of victims having rights. At this time I am leaning against Marcy’s Law, mostly because I fear how it will interact with the failing PSIA program. Additionally its length has me nervous about the number of unintended consequences that could be found out if it was added to the South Dakota constitution. Perhaps as I look closer at the actual contents of Amendment S I can find support for Marcy’s Law.