In 2008, California was the first state to pass constitutional amendment
recognizing what is known as “The Victim’s Bill of Rights.”
Also known as “Marsy’s Law,” California’s Victim’s
Bill of Rights was introduced as a ballot initiative and passed by a majority
of California voters in the 2008 general election 54% to 46%.
Since its passage in California, other states have seen similar initiatives
proposing a Victim’s Bill of Rights. Although the thought of a Victim’s
Bill of Rights sounds very appealing, it is not without controversy. This
article discusses the impact of Marsy’s Law and the arguments for
and against it.
What Is Marsy’s Law?
In general, Marsy’s Law is a proposed amendment to state constitutions
recognizing certain rights to victims of crimes. In particular, Marsy’s
law addresses issues such as privacy for victims of crimes, as well as
rights regarding the involvement of victims in the criminal proceedings
of the accused.
California’s Victim’s Bill of Rights can be found under Article
I, Section 28 of the California constitution, listing the following rights:
- “To be treated with fairness and respect for his or her privacy and
dignity, and to be free from intimidation, harassment, and abuse, throughout
the criminal or juvenile justice process.
- To be reasonably protected from the defendant and persons acting on behalf
of the defendant.
- To have the safety of the victim and the victim’s family considered
in fixing the amount of bail and release conditions for the defendant.
- To prevent the disclosure of confidential information or records to the
defendant, the defendant’s attorney, or any other person acting
on behalf of the defendant, which could be used to locate or harass the
victim or the victim’s family or which disclose confidential communications
made in the course of medical or counseling treatment, or which are otherwise
privileged or confidential by law.
- To refuse an interview, deposition, or discovery request by the defendant,
the defendant’s attorney, or any other person acting on behalf of
the defendant, and to set reasonable conditions on the conduct of any
such interview to which the victim consents.
- To reasonable notice of and to reasonably confer with the prosecuting agency,
upon request, regarding, the arrest of the defendant if known by the prosecutor,
the charges filed, the determination whether to extradite the defendant,
and, upon request, to be notified of and informed before any pretrial
disposition of the case.
- To reasonable notice of all public proceedings, including delinquency proceedings,
upon request, at which the defendant and the prosecutor are entitled to
be present and of all parole or other post-conviction release proceedings,
and to be present at all such proceedings.
- To be heard, upon request, at any proceeding, including any delinquency
proceeding, involving a post-arrest release decision, plea, sentencing,
post-conviction release decision, or any proceeding in which a right of
the victim is at issue.
- To a speedy trial and a prompt and final conclusion of the case and any
related post-judgment proceedings.
- To provide information to a probation department official conducting a
pre-sentence investigation concerning the impact of the offense on the
victim and the victim’s family and any sentencing recommendations
before the sentencing of the defendant.
- To receive, upon request, the pre-sentence report when available to the
defendant, except for those portions made confidential by law.
- To be informed, upon request, of the conviction, sentence, place and time
of incarceration, or other disposition of the defendant, the scheduled
release date of the defendant, and the release of or the escape by the
defendant from custody.
- To restitution.
- It is the unequivocal intention of the People of the State of California
that all persons who suffer losses as a result of criminal activity shall
have the right to seek and secure restitution from the persons convicted
of the crimes causing the losses they suffer.
- Restitution shall be ordered from the convicted wrongdoer in every case,
regardless of the sentence or disposition imposed, in which a crime victim
suffers a loss.
- All monetary payments, monies, and property collected from any person who
has been ordered to make restitution shall be first applied to pay the
amounts ordered as restitution to the victim.
- To the prompt return of property when no longer needed as evidence.
- To be informed of all parole procedures, to participate in the parole process,
to provide information to the parole authority to be considered before
the parole of the offender, and to be notified, upon request, of the parole
or other release of the offender.
- To have the safety of the victim, the victim’s family, and the general
public considered before any parole or other post-judgment release decision is made.
- To be informed of the rights enumerated in paragraphs (1) through (16).”
Marsy’s Law is named after Marsy Nicholas, the late sister of Henry
Nicholas, the founder and CEO of Broadcom Corporation and the non-profit
group Marsy’s Law: Justice for Crime Victims. Marsy was stalked
and murdered by her ex-boyfriend in the early 1980s. The experience of
the Nicholas family in confronting Marsy’s murderer—both privately
and through attending his parole hearings—inspired them to organize
a comprehensive list of rights for victims of crimes.
Marsy’s Law was introduced in 2008, expanding on California’s
existing Victim’s Bill of Rights, which was passed in 1982. The
original Victim’s Bill of Rights focused on restitution for victims,
safe schools, limits on the insanity defenses, enhanced sentencing for
habitual criminals, and the right for victims to make statements at parole
hearings, among other rights.
Arguments Surrounding Marsy’s Law
Proponents of Marsy’s Law argue that the accused in a criminal case
has more constitutional protections and rights than the victim. To address
this, Marsy’s Law enshrines rights for victims so they can have
“equal rights” and protections to those of the accused in
a criminal case. Former Federal Judge Paul Cassell—a supporter of
featured on the Marsy’s Law for All website—said that the purpose of Marsy’s Law is to expand the rights
of victims without taking away the protections afforded to defendants.
Critics of Marsy’s Law, including various members of the American
Civil Liberties Union (ACLU), argue that the notion of “equal rights”
for victims improperly characterizes and positions the defendant’s
constitutional rights in opposition to victims. Opponents reason that
the constitutional rights for criminal defendants are designed to protect
people against government oppression, whereas the victim’s constitutional
rights are aimed at protecting them against the accused. As a result,
the prospective harms to victims versus defendants are not comparable,
according to opponents.
Impact of Marsy’s Law in California
A significant concern about Marsy’s Law involves its effect on parole.
Marsy’s Law led to the inclusion of California Penal Code §
3044 “to protect a victim from harassment and abuse during the parole
Marsy’s Law’s changes to the parole process include:
- Unlimited use of hearsay evidence in parole hearings
- Limiting the right to assistance of counsel for parole hearings to indigent
parolees and other circumstances
- Extending the time between arrest and a probable cause hearing from 10
days to 15 days
- Extending time between arrest and revocation resolution from 35 to 45 days
Noticing that California Penal Code § 3044 limited the defendant’s
rights, a federal court struck it down for “fall[ing] short of what
is required by federal due process.”
Another concern involves cases involving the murder of an abusive spouse
committed by an abused spouse. In such cases, the label of “victim”
doesn’t feat neatly with one party versus the other, as the defendant
can reasonably be considered to be a victim in their own right.
The California constitution defines “victim” to mean “a
person who suffers direct or threatened physical, psychological, or financial
harm as a result of the commission or attempted commission of a crime
or delinquent act. The term ‘victim’ also includes the person’s
spouse, parents, children, siblings, or guardian, and includes a lawful
representative of a crime victim who is deceased, a minor, or physically
or psychologically incapacitated. The term ‘victim’ does not
include a person in custody for an offense, the accused, or a person whom
the court finds would not act in the best interests of a minor victim.”
The California constitution’s definition of “victim”
specifically excludes the accused and someone arrested for an offense.
As a result, Marsy’s law forces the defendant into the “victimizer”
role, even in cases where they may also be a victim of abuse.
Contact Hanson, Gorian, Bradford & Hanich for Legal Advice
Your rights as a criminal defendant are important. If you need a professional
attorney to represent you in a criminal case, you should contact Hanson,
Gorian, Bradford & Hanich. Our experienced attorneys are dedicated
to defending your constitutionally protected due process rights.
For an initial case evaluation, call us at (951) 687-6003 or
visit us online today.