Victims’ Rights Meet State Constitutions

Over the last 40 years, there has been a quiet revolution in the constitutional rights of crime victims. In 1982, Ronald Reagan convened the President’s Task Force on Victims of Crime, which ultimately recommended an amendment to the U.S. Constitution. Though congressional resolutions to advance such an amendment never gained enough traction, the effort gave rise to a national campaign to amend state constitutions. Today 37 states grant victims certain rights to participate or seek restitution in criminal cases.

This effort gained added momentum in 2008 when California voters adopted the nation’s first Marsy’s Law amendment. The amendment is named for Marsalee “Marsy” Nicholas, who was murdered in 1983, and whose brother and mother encountered the person who killed her in a supermarket while he was on bail awaiting trial.

Marsy’s Law is a package of amendments that grants victims and their families the right to be notified of and participate in many aspects of criminal proceedings: the right to refuse depositions, the right to restitution, and more. With a national campaign funded by Marsy’s brother, tech billionaire Henry Nicholas, voters in 12 states have passed a Marsy’s Law amendment.

But this momentum has not been without friction, and victims’ rights amendments have faced court challenges across the country that encapsulate much of what makes state constitutions distinct.

For example, state courts regularly have to define the contours of these relatively new rights, which are often written in broad terms. Next week, the Maryland Supreme Court will hear one such case in an appeal by Adnan Syed, whose case was made famous by the podcast Serial. (Rex Bossert previewed the argument for State Court Report this week.)

Though a Baltimore judge vacated Syed’s conviction for the 1999 murder of Hae Min Lee last year, Lee’s family appealed and won in the intermediate appellate court. The appeals court ruled that the trial court had violated Lee’s brother’s rights as a victim under state law when he was given inadequate notice of the hearing to vacate Syed’s conviction and was only allowed to attend via Zoom. (Maryland voters adopted the state’s victims’ rights provisions in 1994, before Marsy’s Law.) The state supreme court will now hear both Syed’s appeal and Lee’s cross-appeal arguing he was unconstitutionally denied the right to speak at the hearing.

Courts have also had to reconcile new victims’ rights provisions with long-standing federal and state constitutional protections for defendants in criminal cases. Last summer, the Arizona Supreme Court struggled to square a defendant’s request for data from a victim’s GPS with the victim’s family’s claim that they have the right to refuse such requests for information. A divided court ultimately sent the case back to the trial court to see if there was a way to balance the rights by changing how the data would be extracted, but a sharp dissent wrote that the majority was overcomplicating the matter, as a victim’s rights “must yield if they conflict with a defendant’s constitutional right to present a complete defense.”

These cases also illustrate how state courts learn from one another and look to their peers for guidance, especially since the multistate victims’ rights campaign has led to numerous state constitutions with similar or identical provisions. In an earlier decision about how to protect both defendants’ and victims’ rights, the Arizona Supreme Court looked at how courts in New Jersey, Iowa, Wisconsin, and Kentucky all addressed the same question.

Lastly, Marsy’s Law has run up against procedural requirements for amending state constitutions. While state constitutions are easier to amend than the federal Constitution, state law often contains detailed procedures and requirements those amendments must meet. Courts in Montana, Pennsylvania, and Kentucky all struck down Marsy’s Law, ruling that those amendments put too many distinct provisions before voters in a single vote or the ballot language did not adequately convey to voters the substance of the amendments. Earlier this year, the Wisconsin Supreme Court upheld its Marsy’s Law amendment in the face of a similar challenge. (You can read more about that case in a State Court Report piece by Walter Olson of the Cato Institute, which also discusses a pending challenge before the Florida Supreme Court.)

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Douglas Keith is a founding editor of State Court Report and senior counsel in the Judiciary Program at the Brennan Center for Justice.