The real question in the debate over the so-called Marsy’s Law constitutional amendment, which is now playing out in New Hampshire, isn’t whether crime victims deserve to be treated with fairness, dignity and respect by the criminal justice system. Nor is it about their right to be protected from intimidation by the accused, to participate in court proceedings, to be notified of material developments in the case and to be compensated for their losses. Those provisions are already enshrined in state law and vigorously protected by victim advocates in the Attorney General’s Office, the Department of Corrections and elsewhere.
The real question is whether it is wise to copy legal language conjured up in California and paste it directly into the Granite State’s constitution.
We think not.
Some background: Marsy’s Law is a nationwide effort to add victim rights provisions to the constitutions of the 15 or so states, including New Hampshire and Vermont, that don’t have them. Supporters hope eventually to amend the U.S. Constitution as well. It is named after Marsalee (Marsy) Nicholas, a California college student who was shot and killed by her ex-boyfriend in 1983. A week after her killing, the ex-boyfriend accosted her mother in a grocery store while he was — without the family’s knowledge — out on bail. The killer, Kerry Michael Conley, was convicted of second-degree murder in 1985. He died in prison in 2007.
In the years since the killing, Marsy’s mother, Marcella Leach (who died in 2015), and her brother, Henry T. Nicholas III, channeled their grief into advocacy for the rights of crime victims. In 2008, Nicholas, the billionaire founder and former CEO of the computer chipmaker Broadcom, led a successful drive to amend California’s constitution to add a victim’s bill of rights. In 2009, he formed and funded the organization known as Marsy’s Law for All to lead the nationwide effort. Since then, several states have adopted some form of Marsy’s Law, and similar efforts are underway in half a dozen more. Marsy’s Law for All has reportedly earmarked $2 million for the effort in each state.
In New Hampshire, the initiative has taken the form of a proposed constitutional amendment known as CACR 22, which has attracted a coterie of powerful supporters, including former prosecutors and Supreme Court justices, 22 of the state’s 24 senators, members of the House leadership, law enforcement organizations and Gov. Chris Sununu.
The effort’s apparent successes derive, we suspect, from its tragic origin story and from the perfectly reasonable and appropriate desire to support crime victims in their struggles. But the version of Marsy’s Law now before New Hampshire lawmakers, despite its laudable intentions, is larded with unintended consequences and unfunded mandates, as states that have already adopted the measure are now learning. To the problems cited by those states — unconstitutional language, procedural delays, increased workloads and increased costs — we would add the following:
The amendment proposed for New Hampshire would give a victim the right “to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.” This is in direct conflict with the right of those accused of crimes to confront the witnesses against them and to obtain witnesses and other evidence in their favor, both of which are guaranteed by the Sixth Amendment to the U.S. Constitution.
When the rights of the accused and the rights of the victim conflict, the proposed amendment provides no guidance to the court on how to proceed. This will necessarily lead to inconsistent rulings.
The proposed amendment, as written, makes no provision for the confidentiality of juvenile court proceedings.
Its definition of “victim” is almost without limit and could be interpreted to include businesses, associations and nonprofit organizations, their employees and board members, and so on. The notification obligation this imposes on local jurisdictions is simply untenable.
Constitutions should not be amended on a whim or in a state of emotional fervor. That’s why there are significant hurdles to be surmounted in the process. This points to another problem: If New Hampshire adopts the Marsy’s Law amendment and then, for whatever reason, wants to change or update it, those same significant hurdles would need to be overcome again. Changing the state’s existing Rights of Crime Victims statute would be a much simpler process.
If crime victims in New Hampshire are not getting the support they need, the solution is to provide police departments, county attorney’s offices, the courts, nonprofit victim advocacy groups and others on the front lines of the criminal justice system with sufficient resources. Marsy’s Law doesn’t address the need for additional funding it surely would create.
If lawmakers in New Hampshire really want to enshrine victim rights in the state’s constitution, the way to do so is to craft the language, have the debates and come up with a true, New Hampshire-born amendment on which the state’s citizens can vote. Cribbing problematic legal language from California may be convenient, but it’s not the New Hampshire way.