Top Reasons Why Marsy’s Law is Wrong for Victims and for Montana

When Montana voters approved CI-116 in 2016, they had no idea that the initiative jeopardizes some of our most cherished Constitutional protections.  The following list provides examples of why CI-116 is wrong for victims, and wrong for Montana.

1. CI-116 is unconstitutional.  Although CI-116 was presented as a “yes" or “no” question to Montana voters, CI-116 amended multiple sections of the Montana Constitution. The Montana Constitution requires a separate vote by Montana voters on each section that is amended. Therefore, CI-116 is unconstitutional because only one vote occurred for multiple amendments.  Under the new CI-116 amendments, victims’ rights will be compromised and defendants’ rights will be eroded. In addition, Constitutional guarantees such as a fair trial, due process, effective counsel, the right to know and the presumption of innocence will be compromised.  
    

2. CI-116’s redefinition of “victim” will compromise the privacy of the victim who was injured, especially in domestic abuse and sexual assault cases. The dramatic redefinition of “victim” gives new rights to family, friends, corporations and other non-human entities. Family members would be ‘victims’ with a group right to be fully informed and involved in every decision. This removes the right of privacy for the traditional victim if, for example, a rape victim is deciding whether to obtain an abortion, or when family members pressure an abused spouse to drop charges and return home. CI-116 robs victims of the decision whether and when to involve their families, and instead gives that power to the state. The new definition leaves victims less empowered and less safe.
    

3. CI-116 gives corporations such as Walmart constitutional rights on par with Montana victims and defendants. CI-116 provides a new right to privacy and requires notice to crime victims, who are defined as “persons” not “individuals.”  This change in language imbues corporations and other “non-human entities” with privacy rights that before CI‑116 were limited to “individuals” (humans), and removes the right-to-know balancing requirement that creates informational transparency in court proceedings.  This blocks the ability of the defendant to understand the charges brought against them and obstructs the press and the public’s ability to be informed.
    

4. CI-116 is redundant with current Montana law. Retired Montana Supreme Court Justice Jim Nelson called Marsy’s Law “A solution in search of a problem.” He explained: “Montana’s Legislature has already enacted a comprehensive body of laws that provide virtually the same victim’s rights as does I-116.” The issue is not that victim protections have not been legally prioritized. They are. Enforcement must improve and those responsible for enforcement must be held accountable. Creating a duplicative law in no way ensures that enforcement of these statutory protections will improve. 
    

5. CI-116 is fiscally irresponsible and financially unpredictable. CI-116 is a classic unfunded mandate.  It will impact every community in the state and, seven months after it passed, we still do not know how much it will cost to implement. The ballot initiative had no fiscal note and as an unfunded initiative, it never had a funding mechanism in place to finance its implementation. Now, local governments must respond to CI-116’s undefined staffing, compliance and procedural requirements. To do this, state and local taxes must be raised or services cut to fund Marsy’s Law. These cuts could diminish existing services for victims. 
    

6. CI-116 will clog Montana’s overburdened criminal justice system. CI-116 requires that all victims, including corporations and family members, have the right to notice and to be present “at all proceedings involving the criminal conduct” of the accused.  This will create an administrative quagmire. Furthermore, the initiative gives victims the right to be “present” and “be heard” before bail or release is granted, even for misdemeanors.  By requiring notice to all victims for bail hearings, CI-116 effectively prohibits cite-and-release signature bonds and “set amount” bail procedures.  This means that a Montanan who wrote a bad check at a Pizza Hut would remain in jail, without an option to post bail, until anyone identified as a “victim”—even a corporate representative from Pizza Hut—could exercise their right “to be heard.” |
    

7. CI-116 denies the press and the public the right to know. The Great Falls Tribune recently editorialized:  “Montana has a whole new slew of unintended consequences now dealing with the victims’ rights Marsy’s Law. This time we can’t point a finger at elected officials. We passed this law, actually a constitutional amendment, in November, with 66 percent of the voters saying yes. Now Montana crime victims have new constitutional rights in our state.  That sounds reasonable, even desirable. Except for the unintended consequences.  In Cascade County, we’ve learned that Marsy’s Law may mean that law enforcement will no longer release the identities of homicide victims. In the past, as is the case with all deaths, the deceased’s family members are notified and then that person’s name is released publicly.”
   Because the law requires notice be provided to all alleged victims, the press and the public’s constitutional right to know is irrevocably compromised.
    

8. CI-116 throws out the presumption that a defendant is “innocent until proven guilty.” Our Constitution guarantees an accused person the presumption of innocence, holds the government to proof beyond a reasonable doubt, and otherwise promises a fair and unbiased trial.  If an alleged victim (in particular for a specific intent crime like assault or fraud) is presumed the victim of a crime before a jury returns a verdict, then the accused is not presumed innocent.  The presumption of innocence and right to a fair trial are further diminished by allowing crime victims’ counsel to participate at each and every legal proceeding, which has the potential to further clog our judicial system.   As a result, both Montana and Federal Constitutional law may require that charges against the defendant be dismissed or may require a second trial — the victims’ rights notwithstanding. This could cause a case where the defendant is guilty to be overturned, harming the victim. That, obviously, is the last thing a crime victim needs.
    

9. CI-116 did not originate in Montana and is not a response to a localized, Montana issue. In 2016, “Marsy’s Law” was bankrolled with $2.4 million from a California millionaire who is leading a disingenuous campaign to insert a “victim’s bill of rights” into states’ constitutions across the country. Minimal discussion occurred around this initiative, voters were misled about the content and eventual impacts, and local victim advocate organizations were not meaningfully consulted during the initiative process.