Victims’ rights measure has wide support amid questions about cost

By: Kari Travis - Carolina Journal

RALEIGH — In 1983, Marsalee Nicholas, “Marsy,” a student at the University of California-Santa Barbara, was shot to death by her stalker ex-boyfriend. One week after the killing, Marsy’s mother, Marsella Leach, and her brother, Henry Nicholas, were accosted by the alleged killer in a grocery store. They had no idea he was out on bail.

So begins the story of “Marsy’s Law For All,” a nationwide campaign pushing states to adopt constitutional amendments to protect victims’ rights. The organization is running legislation in the N.C. General Assembly via House Bill 551, “Strengthening Victims’ Rights.” The N.C. House passed the proposed amendment in 2017, and the Senate is slated to discuss it this week.

Many lawmakers and advocates believe the bill is a beacon for victims and their families, providing more protection and better access to court proceedings. But others think the legislation, while well-intentioned, would complicate the justice system and inflict additional costs on taxpayers.

On the surface, Marsy’s Law is a simple premise. Expand rights for victims and their families. Give them more access to court and bail hearings, pleas, and sentencing decisions.

At the center of the campaign is Henry Nicholas, Marsy’s brother — and the man who is bankrolling MLFA’s national crusade. Nicholas is a complicated figure. The billionaire co-founder of Broadcom, cited on his organization’s website as a “philanthropist and leader of the victims’ rights movement,” in 2008 was indicted on fraud charges.

The charges were dropped after a federal judge cited misconduct by prosecutors, but Nicholas’ reliance on using stock options rather than money to compensate employees was controversial at the time.

Nicholas’ reputation and the origins of Marsy’s Law are inconsequential to North Carolina’s victims’ rights efforts, Rep. Destin Hall, R-Caldwell, a primary sponsor of H.B. 551, told Carolina Journal. The law, drawn from language provided by MLFA, has been heavily revised under the direction of state lawmakers, he said.

“For me, I don’t even call this Marsy’s Law, really, because it’s not about Marsy’s Law for me. Frankly, I wish I would’ve had the idea myself to do this. … It’s something we should have done a long time ago.”

The North Carolina Constitution already includes protections for crime victims, such as the right to be heard at sentencings and the right to information about proceedings. Voters passed that provision in 1996.

The problem, said Hall, is that current language, which states victims are entitled to certain rights “as prescribed by law,” is effectively toothless — subject to statutory changes from the General Assembly. No victim should be at the mercy of the changing opinions of state legislators, he said.

H.B. 551 more broadly defines victims’ rights and precludes them from legislative overhaul.

The bill would shore up constitutional protections, allowing a victim to be heard at criminal proceedings in addition to sentencings. It also would emphasize other rights, such as “reasonable protection from the accused or anyone acting at the direction of the accused.”

The bill expands rights to victims of delinquent acts in addition to crimes. It tweaks language to cover victims of all felonies, “as well as other constitutionally enumerated defenses,” according to analysis from the UNC School of Government’s criminal law blog.

Lawmakers have been careful to make sure H.B. 551 is consistent with N.C. statutes, Hall said, “because if we do that, we’re not really changing anything as far as the burden on district attorneys and law enforcement. We’re just simply saying the General Assembly can’t come back later on and change this.”

If H.B. 551 passes the Senate by a vote of at least a 60 percent, voters in November would determine whether to add the amendment to the state constitution. If enacted, the bill shouldn’t change much, Hall said, as many rights outlined are already protected — or should be — under the direction of the state’s district attorneys.

Intentions are good, but the bill has problems, Rep. Pricey Harrison, D-Guilford, told CJ. Lawmakers could better protect victims by statute, not by constitutional amendment, she said. If the amendment passes and the state discovers problems with implementation, it’s impossible to make changes without voter approval in a separate amendment.

“We need to put more money into victims help and assistance, but I don’t know that this is the right way to do it,” she said.

Few legislators have questioned the amendment’s price tag, Harrison said, pointing to a fiscal note showing state courts may need an additional $30 million annually to pay for district attorney staff and other costs.

N.C. Policy Watch last week published the note, a confidential document from the Administrative Office of the Courts.

Before the document’s release, CJ spoke with Chris Sinclair, chief consultant for Marsy’s Law N.C., the organization lobbying for passage of H.B. 551. Sinclair denied the existence of any financial estimates, saying “there could be an impact, but nobody can put a fiscal note on it.”

One day before the release of the fiscal note, Sinclair, who was quoted in the Policy Watch story, phoned CJ and asked what other sources it had consulted for this story. CJ declined to disclose that information.

Marsy’s Law N.C. has spent two years trying to pass enhanced victim protections, Sinclair said. California, Illinois, North Dakota, South Dakota, and Ohio have so far amended their constitutions to include language from Marsy’s Law.

Some of those states hit rough patches.

North Dakota reportedly spent an unexpected $800,000 updating victim notification systems. South Dakota prosecutors spent hundreds of thousands of dollars hiring additional staff to find victims of low-level misdemeanors.

The law “sounded good, but didn’t end up being what was advertised,” Mark Mickelson, speaker of the S.D. House, told The Marshall Project.

Unlike those states, which didn’t have much foundation for the law, North Carolina has a solid platform, Sinclair said, pointing to the state’s existing protections and its system for notifying victims during criminal processes.

Hall disputes the AOC’s $30 million estimate, saying costs are impossible to predict. Requirements on district attorneys and courts should be minimal, he said, since they’re already supposed to be protecting victims’ rights.

“How can it cost that much more to do what you’re already required to do?”

Cost is just one of many questions lawmakers should ask about H.B. 551, said Susanna Birdsong, a spokeswoman for the American Civil Liberties Union of North Carolina.

The language is vague and could undermine the presumption of innocence for defendants, she said. Defendants’ rights are “rights against the state, and have always been described as being a check on the government.” Victims’ rights are just as important, she said, but are rights against the defendant — not the state.

That’s the role of a statute, not a constitutional amendment, she said.

California, Nicholas’ home state, has seen positive and negative results since it became the first state to pass Marsy’s Law in 2008, said Garrick Byers, former president of the California Public Defenders Association. Now a private attorney, Byers served 33 years as a public defender and was a close observer of the law’s implementation.

“It’s benefited victims. It’s benefited prosecutions. If you’re a defendant, you might feel it makes things harsher than what it should be,” Byers told CJ.

But defendants’ rights shouldn’t override every other consideration, he said. The law did some good for victims. It increased their input to prosecutors and courts. It boosted public awareness.

As far as cost, it’s hard to say how much California has spent, since enforcement of victims’ rights is so embedded in the system.

“What’s the cost of a prosecutor? What’s the cost of the court time of victims coming to court in certain cases? What’s the cost of extra restitution hearings? I’m sure there is a cost. But it’s very difficult to separate it out.”

Every state is going to have different dynamics, and the legislative process is nuanced in each, said Sinclair. One thing remains consistent, he said.

“Victims deserve equal rights. Nothing more. Nothing less.”

There’s not a single person in the legislature who doesn’t care about victims, Harrison said. But amending the constitution is a big deal, and the General Assembly would do better to enact laws and fund programs that will help those who suffered at the hands of criminals, she said.

“I’d just like to be more thoughtful before we do something to our constitution. … This may cost us a fortune. It didn’t get vetted, and now it may end up as a constitutional amendment.”

Kari Travis

Carolina Journal