The Washington Post

It’s a popular cause, but victims’ rights faces new backlash

By Sean Murphy?|?AP December 26 at 10:16 AM

OKLAHOMA CITY — After his sister was slain and
his mother ran into the accused killer, out on
bail, in a grocery store a week later, California
billionaire Henry Nicholas became a fierce
advocate for the rights of crime victims.

He donated millions from his fortune as
co-founder of tech giant Broadcom to create a
so-called “crime victims’ bill of rights”— dubbed
Marsy’s Law after his slain sister Marsalee — and
add it to the state’s constitution in 2008.

Now Nicholas is taking his crusade nationwide,
with teams of lobbyists, public relations firms
and high-powered political strategists converging
on other state capitols for a similar push. But
while the idea of standing up for crime victims
is an easy sell politically, complaints are
mounting that the initiative is becoming a
testament to the danger of unintended consequences.

Not just defense lawyers, but some local
prosecutors, police and victims’ advocates are
concerned that the law’s extensive
victim-notification requirements could impose
crippling costs and administrative burdens on
smaller towns and counties with limited
resources. Supporters maintain those complaints
are exaggerated and that any increased workload
is worth the benefit of helping crime victims.

Still, law enforcement and victims’ advocates in
some places are calling for its defeat or reversal.

“Our local government does not have enough money
to operate and protect victims adequately
already. Now we have these unfunded mandates that
are coming through Marsy’s Law to local
governments without the resources to pay for
them,” said Leo Gallagher, county attorney in Lewis and Clark County, Montana.

Montana passed the measure in 2016, but the
state’s Supreme Court recently tossed it out
citing flaws in how it was written.

Marsy’s Law requires that crime victims be
notified and heard in most criminal proceedings,
receive protection and “full and timely”
restitution and be allowed to confer with
prosecutors. It also expands victims’ privacy
rights and prohibits “unreasonable delay” of criminal cases.

The measure has been approved by voters in six
states — California, Ohio, Illinois, Montana,
North Dakota and South Dakota — and efforts have
been launched in at least nine more.

Skeptics are trying to push back.

“When we first heard about it, we thought it was
a no-brainer,” said Darla Juma, who runs the
victims’ witness assistance program in two
counties in North Dakota, where the ballot
measure passed last year. “But there are counties
that don’t have a victims’ advocate, and now
they’re having to send notices, notify victims.
Who’s going to pay for that work?”

Some prosecutors complain that the requirements
are especially impractical for white collar cases
with large numbers of victims, such as securities
frauds involving thousands of stockholders.

“You really would clog the system if you’re going
to give thousands of people the right to be heard
at every stage of a proceeding,” said Barry
Pollack, former president of the National
Association of Criminal Defense Lawyers.

Marty Lambert, the top prosecutor in Gallatin
County, Montana, the state’s third-largest county
with about 90,000 residents, said he would have
to hire two additional staffers for all the
hearing and offender-release notices.

But law enforcement agencies in California, where
the law has been in effect the longest, are
finding a way to adjust, though not easily.

In that state, “I wouldn’t call it a
catastrophe,” said Robert Weisberg, co-director
of the Criminal Justice Center at Stanford
University. “I would call it a notable administrative burden.”

Supporters of Marsy’s Law say there simply isn’t
any evidence of law enforcement being
overwhelmed. Nicholas did not respond to an interview request.

In Oklahoma, where the proposal will appear on
the state ballot in 2018, David Prater, the top
prosecutor in Oklahoma’s largest county, said he’s keeping an open mind.

“Anything we can do to allow victims a greater
voice in the system and to ensure that their
rights are upheld, I think that is very important,” Prater said.

Even states that welcomed the law have been
amazed by the promotional juggernaut behind it.

In South Dakota, which ranks 46th in population
in the U.S., Nicholas spent more than $2 million
on consultants, strategists and advertising for
the campaign. The amendment was approved in 2016
with nearly 60 percent of the vote, but
Republican Speaker of the House Mark Mickelson
now says he intends to push for its repeal next year because of the costs.

Nicholas also spent about $2 million in
neighboring North Dakota, or about $6 per voter.

In Oklahoma, the proposal sailed through the
Legislature this year with the help of nine
lobbyists and two public relations companies.
Marsy’s Law pamphlets were circulated everywhere
that crowds formed, even outside football games.

“The real export from California is indeed the
whole lobbying operation,” said Weisberg, the
professor at Stanford. “We’ve helped birth the
creation of a vast industry that knows how to put
forth statewide ballot campaigns.”

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