LOUISVILLE, Ky. (WDRB) – When Kentuckians go to the polls next month, they’ll decide whether to add a set of crime victims’ rights to the state constitution.
The ballot approval would be the final step in a years-long campaign that included lawmakers overwhelmingly passing “Marsy’s Law” bills earlier this year.
Supporters say the protections will give crime victims the same rights as people who are accused and convicted, letting them be heard in most court proceedings and ensure judges consider their safety in bail and release decisions, among other things.
“There’s a reason that offenders’ rights are constitutional because they are enforced and because the criminal justice system looks at those very seriously and makes sure that they’re enforced,” said Ashlea Christiansen, state director of Marsy’s Law for Kentucky. “That’s the reason that these rights need to be in place in the constitution as well for victims.”
But ahead of the November election, a group of defense lawyers has filed a lawsuit seeking to nullify any votes that are cast on the proposed constitutional amendment. A ruling is expected by October 20, although it’s likely that the decision will be appealed to the Kentucky Supreme Court.
Kenyon Meyer, an attorney for the Kentucky Association of Criminal Defense Attorneys, argued in court last week that the legislature’s summary of the amendment that will appear on ballots statewide doesn’t give voters enough details.
“We think if the constitution, which is the most important document in our judicial system, is going to be changed, the people should know what the change is,” he told reporters after the hearing in Franklin Circuit Court.
Despite the broad support in the legislature, where only four lawmakers in both chambers voted against the “Marsy’s Law” amendment, some attorneys and civil libertarians are warning of unintended consequences if Kentuckians approve it on Nov. 6.
They say the notification requirements could burden already overworked and understaffed court systems, while victims’ rights will be tilted in favor of those who can afford attorneys.
Hardin County Commonwealth’s Attorney Shane Young said he has many questions about how the law will play out in court.
For example, how much say will victims have in plea deals? Sometimes prosecutors and defense attorneys reach agreements that victims believe are too lenient.
What if a victim can’t be reached for a court hearing or guilty plea?
The law, Young said, could lead to court delays and stalemates that clog an already overburdened system.
Young, who is president of the Kentucky Commonwealth’s Attorney’s Association, said prosecutors have “voiced some concern about how this is going to work. We’re told, 'we’ll figure it out later.'”
And including more lawyers is going to add more motions, longer hearings and additional steps in the process.
“The less attorneys you can have involved in something, the better off everyone is,” Young said in an interview.
But “Marsy’s Law” backers downplay concerns.
Sen. Whitney Westerfield, the Hopkinsville Republican who sponsored the measure in the General Assembly, said the amendment expands current law, which now gives rights to victims of about a dozen crimes, and beefs up notification provisions for victims that are “pretty weak.”
The new rights would apply to victims of felony crimes and misdemeanors involving threats, personal injury or harassment, among others.
Westerfield said the amendment would not dilute the constitutional rights of defendants.
“It actually restates and reaffirms the rights of the accused,” he said. “This is a set of basic rights for crime victims that make sure they have a meaningful role in the process.”
Ineffective laws
The push to change the Kentucky Constitution is part of a nationwide effort named for Marsalee “Marsy” Nicholas, a college student who was shot and killed by her ex-boyfriend in California in 1983.
A week after her death, her brother Henry Nicholas and her mother unexpectedly ran into her killer in a supermarket, unaware that he had been released on bail, according to the Marsy’s Law website.
Henry Nicholas, an entrepreneur who co-founded the Fortune 500 company Broadcom Corp., has spearheaded the movement in the U.S., which has resulted in six states approving the victims’ rights protections.
South Dakota voters amended their constitution with “Marsy’s Law” rights in 2016, only to revise it this year to address officials’ concerns over increased costs and other unplanned results. It was the first state to make changes, the Associated Press reported.
In Kentucky, the state’s county attorneys association worked closely with supporters of the proposed amendment to tweak early versions, said its president, Steve Gold, the Henderson County Attorney.
For example, Gold said, Kentucky initially would have given victims’ attorneys the right to cross-examine witnesses and be part of a trial. Ultimately the General Assembly agreed to limit that participation, he said.
“The actual trial in front of a jury – that needs to be a two-party thing, and that’s what this does,” he said. “It doesn’t give them a seat at the table during the trial itself because that’s a guilt or innocence decision.”
Gold said county attorneys still are concerned about an increased workload and postage costs for notifying victims. “It’s a little bit of extra work, but it’s not impossible,” he added.
Mona Mills, whose sister Barbel Poore was a 20-year-old mother when she was murdered while working at a Louisville gas station in 1981, said she’s spent years making “constant phone calls” trying to stay abreast of parole and other hearings.
Her sister’s killer, Kevin Stanford, was sentenced to death but had his sentence commuted to life in prison by then-Kentucky Gov. Paul Patton in 2003. Stanford has asked to be released from prison, arguing that under a recent U.S. Supreme Court ruling, he was improperly sentenced as a juvenile to life without parole. His case is pending.
To Mills, the rights for crime victims in current Kentucky law are ineffective.
“I would be a very good prime example that those rights are rarely enforced. I didn’t get my rights,” Mills said. “I have not been notified on several different occasions, very important occasions.”
Also, she said: “I have never once been able to make a victim’s impact statement.”
Trouble ahead?
While “Marsy’s Law” advocates say it will give crime victims the same constitutional rights as people accused of crimes, some predict courts may be forced to choose when those rights conflict.
For example, what happens when a crime victim asserts the right to “proceedings free of delay” but a defense attorney needs more time to prepare for a trial?
That’s a troublesome scenario, said Heather Gatnarek, staff attorney for the ACLU of Kentucky.
“The court will be stuck,” she said. “Do I grant the right to a speedy trial or do I grant the right to an adequate or prepared defense?”
Gatnarek envisions cases where those conflicts set up fights that will drag on in appeals courts.
Covington attorney Olivia Amlung said she’s concerned about other unforeseen problems. She said she believes the amendment would let victims participate in cases before they’ve been resolved, potentially giving the impression that a crime has been committed.
“It’s very well-intended legislation, and I do think we need victims’ rights reform in Kentucky,” she said. “But it’s just not the right way to do it. We need to fix the system we already have.”
The Marsy’s Law of Kentucky political action committee has spent more than $350,000 lobbying the General Assembly since 2015, while Henry Nicholas has put more than $4 million on an advertising blitz ahead of the November vote, state records show.
The question that will be posed to voters is:
“Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?”
Reach reporter Marcus Green at 502-585-0825, mgreen@wdrb.com, on Twitter or on Facebook. Copyright 2018 WDRB Media. All rights reserved.
