Editor’s Note: A Pennsylvania Commonwealth Court judge has granted a preliminary injunction against the referendum on Marsy’s Law, meaning votes for the ballot measure won’t be tallied or certified while a legal challenge to the amendment is pending.
Pennsylvania voters in the Nov. 5 election will find 73 words with repercussions that could outlive any of the candidates on the ballot.
A referendum proposes adding the rights of crime victims to the state constitution. But as the measure – known as Marsy’s Law – receives strong backing from many who work in law enforcement and advocates who say crime victims who deserve a say in their cases, it stokes fears among civil rights advocates that it will erode the rights of those whose freedom is at stake.
“The victims’ rights that they are attempting to amend into the constitution are there not in relationship with the state – to either require less or more government involvement or protecting some of those freedoms,” said Elizabeth Randol, legislative director of the ACLU of Pennsylvania. “The rights of the victim under Marsy’s Law would come at the expense of other individual rights, namely, those of the accused.”
Jennifer Riley, state director of Marsy’s Law for Pennsylvania, the group leading the push for the amendment in the state, said the goal isn’t to take away protections from anyone.
“Rights are not a zero-sum game,” she said. “Just because you elevate the victim’s rights doesn’t take away from the defendant in any way, shape or form.”
Those who question the need for the amendment point to a more than two-decade-old state law already on the books.
The 1998 Crime Victims’ Act grants similar rights to crime victims as the amendment, including to be notified of major events in their cases and submit impact statements for judges to weigh in making sentencing decisions.
Not everyone agrees it’s enough.
For Marie Christinis, the director of crime victim services for the Washington County district attorney’s office, passing the referendum would send a strong message on behalf of victims, who in her experience often feel the people who harmed them enjoy more rights than they do.
“I think when someone is told, ‘This is your constitutional right,’ they get it,” Christinis said.
Christinis said her office already practices many of the things Marsy’s Law would require.
Advocates from her office work with victims throughout the criminal process. They accompany victims at hearings, help them navigate the adversarial and highly technical apparatus of the court system, connect them with services and offer moral support.
But Christinis suspects that’s not true throughout the state. The measure would do more than existing law to provide uniformity in how victims are treated, she predicted.
Still, there are many who question exactly how the amendment would do so – and how it would line up with the rights of the people whose freedom is at stake in the proceedings.
“I assume that victims can apply to the court somehow to vindicate their rights, but none of that’s spelled out in the amendment,” said Steven Bizar, an attorney from Dechert, a law firm based in Philadelphia.
Bizar – along with colleagues and ACLU lawyers – is part of a team challenging the proposal as unconstitutional in a case before the Commonwealth Court they brought on behalf of the League of Women Voters of Pennsylvania and Lorraine Haw, a Philadelphia voter.
They argue the proposal amounts to unconstitutional “logrolling” that combines numerous changes into a single amendment.
Riley called the lawsuit a “tactic to influence the election. It’s a voter-suppression tactic in my mind.”
Bizar said it’s really about making sure voters get a say. As written, the referendum would affect three distinct articles, eight different sections and a separate judicial schedule.
“It is an incredibly broad-brush, omnibus bill – it’s like a combo meal,” Bizar said. “Under our constitutional regime, you can’t just go willy-nilly and amend the constitution. (Voters) should have the right to decide the particular provisions that they like, and the particular provisions that they don’t like, and to vote for each.”
Pittsburgh defense attorney Todd Spivak said the existing law could be strengthened, but some of the proposed changes are vague. He said some also “appear to presume the guilt of the accused,” such as language about considering the safety of the victim in bail proceedings.
Meanwhile, the state District Attorneys Association is throwing its support behind the proposal. While it was gliding through the legislature last year, the group argued victims and defendants “should be on equal constitutional footing.”
Jennifer Storm, the state victim advocate also backs it. Earlier this year, Storm contended in an editorial in the Harrisburg Patriot-News it would add teeth to the existing law, which doesn’t offer victims recourse if their rights are violated.
But others are quick to point out the amendment probably doesn’t, either. Senate Bill 1011, which triggered the ballot question, expressly bars victims from suing government agencies, prosecutors and other officials if they don’t follow the provisions of the amendment.
“They want to elevate victims’ rights to a constitutional level, and then sort of kick the stool out from underneath them and not provide any enforcement mechanism, to provide them with any remedy for, mostly, the problems (that arise currently) around notification,” Randol said. “It’s kind of a bait and switch, as far as I can see.”
Riley said the goal of Marsy’s Law for Pennsylvania isn’t punitive. Instead, its proposal would allow victims whose rights were violated to ask the court for the chance to speak. If everyone’s rights are upheld, no one would have to invoke the victims rights.
“That’s really at the heart of this – to make sure that the victim has a voice,” she said. “Not a veto, a voice.”
Department of State records show the group spent $1.1 million on lobbying for its cause over the past two years.
It’s part of a national movement that gets its name from Marsalee Nicholas, a California university student whose ex-boyfriend murdered her in 1983. Her family sought more rights for crime victims after the killer was released on bail without their knowledge.
A total of 35 states have some kind of constitutional provision dealing with the rights of crime victims.
Voters in six states agreed to approve Marsy’s Law amendments to their constitutions last year alone, bringing the total to 11, according to widespread media coverage.
In one, Kentucky, the state Supreme Court declared the amendment invalid because the full text wasn’t on the ballot. Montana’s Supreme Court scrapped the law two years ago, finding multiple changes had been improperly placed on the ballot as a single question.
South Dakota passed the measure in 2016, but went back to voters last year in an attempt to straighten out problems with the first version.
The appellate decisions haven’t been the only reason for increasingly skeptical receptions the group has gotten.
Henry Nicholas III – the tech-billionaire brother of Marsalee and founder of the campaign named for her – made national headlines last year in Las Vegas, where police claimed to have found an assortment of illegal drugs in his hotel room.
Riley said she couldn’t speak directly to those allegations, but said the movement “is bigger than any particular person” and enjoys widespread support in Pennsylvania.
Locally, the two candidates in the district attorney’s race have mixed views on the measure.
Democrat Jake Mihalov said he would “most certainly keep victims in mind” during plea and sentencing proceedings. He added the proposed amendment is “a little over-broad.” He said he agrees with parts of it, but most of those aspects are contained in the existing law.
“It bothers me a little bit, constitutionally, that those rights ensconced in the Constitution would make it more difficult for an (assistant district attorney) to use the discretion they would need in a case to ensure the criminal justice made sense in that situation,” Mihalov said.
Gene Vittone, a Republican and incumbent who’s seeking a third term, said he supports the measure, even with the existing law in place.
“Statutes can change, and there really isn’t the ability for a victim to come into court and say, ‘well, I didn’t get notice. I need to have the benefit of what’s going on in this proceeding,’” Vittone said. “In those counties, where they don’t have the robust stuff that we have here, that might provide an avenue for them to come into court.”