Kentucky Ballot Initiative Analysis: Amendment 1 (2020)

Kentucky Amendment 1: Marsy’s Law Crime Victims Rights Amendment

Summary:

Kentucky’s Amendment 1 is a set of victim’s rights policies titled “Marsy’s Law.” The amendment is intended to provide expanded protections for victims of crimes and their families, such as advance notice of all court proceedings, extra protection from stalking or harassment, right to privacy, victim testimony at bail and other hearings, and consideration of the victim in the bail-setting process.

Fiscal Impact:

Amendment 1 does not have a fiscal note from the state but the exact costs are unknown, other states who have implemented the law may provide estimates. In North Dakota, a state with less than a quarter of the population of Kentucky, the law was estimated to cost $2 million per year. In North Carolina, it was estimated to cost $16.4 million to implement and $30.5 million annually in subsequent years.

Proponents Arguments For:

Supporters argue that the rights of victims and their families deserve the same constitutional protections as the rights of the accused. The current imbalance leads to victim abuse like harassment, especially when the accused are out on bail and parole. Victims deserve to be involved as much or as little as they desire, including testifying at bail and parole hearings. As doing so can place victims at high risk, they should be provided appropriate protections. Attempts to protect victims in statute have not been successful, so the state constitution is the best place to ensure that victims’ rights are placed on equal footing with the accused, supporters of the amendment say.

Opponents Arguments Against:

Opponents argue that the rights of the accused are fundamentally different than victims’ rights.  Primarily, the rights of the accused are there to protect citizens from the immense power of the state to arrest and incarcerate individuals accused of crimes. They protect parties that are presumed innocent until proven guilty. Opponents further argue that the threats and violence against victims and families that Marsy’s Law purports to protect against are already illegal. Stalking and harassment are illegal and those protections need to be enforced. Much of the justice process is already public and accessible to victims, though some jurisdictions need to improve how they keep victims informed, opponents say.

Discussion:

Victims’ rights as a concept have been around since at least the 1960s, when the first victim compensation funds were established in California. Since then, nearly every state has adopted a victim protection program, but only 13 states have adopted Marsy’s Law. By creating special rights for victims against other individuals, Marsy’s Law may include some necessary additions to encourage victim participation in the justice process, but also has some concerning consequences.

First, the ability of victims to withhold information from scrutiny is dangerously close to impeding the right of due process for the accused, who are presumed innocent until proven guilty. This can result in defendants not having access to key witnesses and other testimonies needed to construct a defense, which is especially concerning when considering the expanded definition of victim to anyone impacted by the crime. While victims certainly deserve consideration in the process, the protections cannot be so robust as to impede due process for the accused.

Another worrying trend is that police have begun to use Marsy’s Law to hide their identity after use of force incidents become public. This was certainly not the intent of the law, but technically anyone who can claim to be a victim, such as when a law enforcement officer claiming to be a victim of a perpetrator who doesn’t cooperate is provided this protection.

Research has also shown that victim impact statements increase the punishment that jurors hand out. In some states, Marsy’s Law has doubled the time between parole hearings. Some states say this is due simply to the administrative burden of ensuring that victims are notified and included in all proceedings. If states are not notifying and involving victims in parole hearings as they should, that should be fixed without creating a new set of rights for a certain class of people.

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