What is Marsy’s Law
In recent years, the rights of crime victims have become an increasingly important topic across the United States. Marsy’s Law is a significant piece of legislation that aims to secure and enforce these rights. Named after a young woman whose family was impacted by violent crime, Marsy’s Law is designed to ensure that crime victims are treated with dignity, respect, and fairness within the criminal justice system. The law is rooted in the belief that crime victims deserve to have their rights and needs considered throughout the legal process.
The origins of Marsy’s Law date back to 1983, when Marsy Nicholas was stalked and killed by an ex-boyfriend in California. Just one day later, while still reeling from the sudden loss of their daughter, Henry and Dawn Nicholas were confronted with a disturbing reality. As crime victims, they had limited information about the criminal proceedings for Marsy’s murder, and had few, if any, rights to participate in the process. Over the next three decades, the Nicholas family fought tirelessly to change the victim’s rights laws not only in California, but across the United States.
In 2008, Marsy’s Law was first adopted as an amendment to California’s constitution, guaranteeing victims certain rights, including the right to be heard at all criminal proceedings, the right to prevent the release of certain information to the public, the right to be heard at parole proceedings, and more. Following California’s lead, Marsy’s Law has since been enacted in 13 additional states, including Florida, North Dakota, Illinois, South Dakota, Montana, Kentucky, Colorado, Georgia, Ohio, Nevada, Kansas, Oklahoma and West Virginia. In addition, there are ballot measures proposed or pending in Arizona, New Mexico, Maryland, Texas, Arkansas, Michigan, Mississippi and Wisconsin . Most recently, President Trump issued a statement of support for Marsy’s Law in April of 2018.
Florida approved Marsy’s Law in November 2018, and it became part of Article 1 of the Florida Constitution in January 2019. The Florida version of Marsy’s Law guarantees certain specific rights to victims of crime, including the following:
To make sense of these rights, it is important to understand that Marsy’s Law specifically directs Florida courts to interpret and expand the scope of these rights in favor of broad enforcement for victims of crime. In other words, when interpreting the law, Florida courts are required to make decisions that best protect the interests of crime victims.
In addition to providing crime victims a basic understanding of their legal rights, Marsy’s Law also helps ensure that better information is publicly available. For example, under the law, Florida is required to create a statewide victim notification system for victims of crimes, which will establish a registry that victims can use to notify their friends and family of the status of their case, as well as give them access to significant case information, such as court dates and trials. In addition, the law requires that every Florida law enforcement agency develop and implement a "victim impact statement form," upon which victims may choose to describe to the court how the crime negatively impacted them. Friends or family of a victim may also submit a statement if the victim is unavailable to do so. The statements may include information about any physical injuries, emotional trauma, medical or psychological expenses, or other financial losses incurred by the victim. The court and parties to the case must then consider the information submitted on the form when determining the victim’s sentence.
Marsy’s Law and Victims’ Rights
The law specifically provides that the purpose of victim’s rights is to preserve "the public’s confidence in our criminal justice system." In Forynski v. State, So.3d (Fla. 5th DCA 2018), the Fifth DCA quoted a brief of amicus curiae filed by the Florida Office of the Attorney General, which described the history, intent and goals of victim’s rights legislation in Florida as follows: The purpose of the victims’ rights crime amendment was to afford crime victims "fair treatment" in the criminal justice system and to preserve "the public’s confidence in our criminal justice system." Art. I, § 16(b). Further, in adopting a version of Marsy’s Law applicable to the State of Florida, the voters of Florida intended to expand upon the victim’s rights that existed prior to November 4, 1988 when Article I, section 16(b) of the Florida Constitution was adopted. As stated in the sponsor’s guide to Ballot Initiatives, the voters intended the amendment to apply to all crimes and expand the victims’ "rights to be informed of, present at, and heard during proceedings involving release of an accused person, plea or sentencing, any proceeding during trial, or parole or other post-conviction release proceedings, and any proceeding that substantially affects the rights of a crime victim." Office of theAttorney General, Ballot Sponsor, Attorney General Pam Bondi, The Victims’ Right Crime Amendment, Section 3, Florida Constitution (2012) (emphasis added). In passing the victims’ rights amendment, the voters closely followed California’s provisions, where at the time of the passage of Marsy’s Law in 2008, California law already applied to "any offense that leads to a point at which a person is arrested and formally accused by any information, complaint or indictment, including, but not limited to, misdemeanors, felonies, and direct filing or referral to criminal court of juvenile offenses." Bradbury, Measure Extends Victims’ Rights Law, Los Angeles Daily Journal, Nov. 17, 2008. Because Florida’s victims’ rights laws were not a codification of California’s, there is no similar Florida opinion construing the scope of a victim’s participation in pretrial hearings, plea hearings, or sentencing proceedings in the context of a more specific exception: "after the defendant files with the Court a written waiver of any further notice." Art. I, § 16(b) and § 16(c)(1)(a)- (e), Fla. Const. Notably, though there is no case under the pre-Marsy’s Law where the Court had to decide whether the statutory ‘witness’ provision in the pre-Marsy’s Law version of F.S. 921.143(3) and article I, section 16(d), violated a victim’s rights by permitting a defendant to present evidence in mitigation and cross-examine the victim, in weighing the balance of a proceeding that extends to the sentencing phase, this Court has determined that a victim’s right to participate as a witness is superseded by a defendant’s right to present evidence and "Presentence reports therefore may not supplant the rights possessed by the victim, petitioner, and members of the public to present evidence to the trial court at a sentencing hearing." Riley v. State, 878 So. 2d 1233, 1235 (Fla. 2004). Sovereign immunity bars the imposition of civil liability against the State and its agencies and employees. See Miss. Woman’s Hosp. Found, 246 So. 3d 1132, 1137 (Fla. 1st DCA 2018). We are constrained by case law to hold that victims are not entitled to notice of the State’s motion for a downward departure with respect to a sentence or to assert their victims’ rights to attend a hearing in which the State argues that a victim’s rights have been violated. The legislature’s act of requiring notice of hearings from the State does not transform the failure to give notice into a violation of victims’ rights. See id. ("No notice means no due process. As noted above, Sovereign immunity cannot be abrogated by the courts.") We find that the constitutional guarantee that victims be afforded a "fair satisfaction of justice" was not violated. Forynski was not deprived of his due process rights by the state’s breach of the mandatory provisions found in the victims’ bill of rights. We make no determination as to whether the federal government, municipalities or subdivisions or other states would be liable in a such a circumstance.
Controversies Surrounding Marsy’s Law
Marsy’s Law in Florida has not been without its share of controversies and criticisms. One of the most significant concerns raised by critics has been the increased costs associated with the amendment. Implementing the complex provisions of Marsy’s Law will likely require extensive training and additional resources to ensure compliance. Critics argue that the expected costs to state and local governments and the criminal justice system are likely to be significant.
There have also been concerns about the preservation of constitutional rights. Critics have pointed out that the amendment may infringe upon the rights of those accused of crimes and may hinder their ability to prepare an adequate defense. The right to confront accusers, for example, could be compromised if their identities are kept confidential. In addition, the provision allowing for the vacating of convictions could result in the release of dangerous criminals.
However, proponents have argued that the benefits of the law – such as the increased protections and services for victims and the accountability it creates within the criminal justice system – far outweigh any potential downsfalls. They see Marsy’s Law as a necessary step toward protecting the rights of crime victims and ensuring their voices are heard during all stages of criminal proceedings.
Various legal challenges have also been filed against the law, arguing that its broad provisions violate substantive and procedural due process rights and create issues of vagueness and overbreadth.
The opponents of the law have been mobilized to take policy positions to change the law, including seeking repeal of the law by ballot initiative in future elections. In 2020, Palm Beach County State Attorney Dave Aronberg and other criminal justice advocates announced their support for a constitutional amendment to repeal Marsy’s Law and replace it with a proposed amendment that would protect both victims’ and defendants’ rights.
While the future of Marsy’s Law in Florida remains uncertain, it is clear that the law has been a point of contention, and its implementation will likely involve ongoing litigation and policy debate. The issue serves as a reminder of the ongoing tension between protecting individual rights and advancing public safety concerns in the field of criminal law.
Case Examples and Case Law
Florida’s courts have only begun to interpret and apply Marsy’s Law since its adoption in 2018. As of 2020, very few decisions have been issued that interpret the new scheme. As such, limited case law exists as precedent for both victims’ rights under the amendment and compliance issues for police and prosecutors. In State v. Novaton, 634 So.2d 607 (Fla. 1994), the Florida Supreme Court upheld certain statutory provisions that provided for the victims’ rights to make a statement at sentencing and for the victims to be present at the proceeding. These rights were codified in Article I, section 16(b) of the Florida Constitution as follows: H. The right to be informed of, and to be present at, all crucial stages of the judicial proceedings against the accused, as prescribed by law; and I. The right to be treated with dignity and the right to timely disposition of the case. Prior to Marsy’s Law, Florida appellate courts "construed the statutory phrase ‘crucial stages of the judicial proceedings against the accused’ to encompass all proceedings subsequent to the filing of the information charging the defendant with a crime . " 634 So.2d at 610. The Florida Supreme Court also explained that the victims’ right to attend "provides them the opportunity to testify or submit a statement in an effort to influence the sentence imposed." 634 So.2d at 609. The Florida Supreme Court has issued several rulings since the 1994 enactment, stating that "a victim’s right to be present at trial must be balanced against a defendant’s right to a fair trial; when necessary, a trial judge must conduct an inquiry and consider the potential effect of a victim’s testimony on the defendant’s right to a fair trial[.]" Korte v. State, 219 So.3d 751, 755 (Fla. 2017). However, any such strategy would be contrary to the clear language of Marsy’s Law which provides a victim "the right to attend judicial proceedings free from any substantial disruption by the defendants [sic], the defendant’s family, supporters, or counsel. . . ." Art. I § 16(b) Fla., Const. A defendant, or his family and friends, cannot be excluded from proceedings based on an accusation that their presence would violate a victim’s rights.
Impact of Marsy’s Law on Law Enforcement and Courts
The adoption of Marsy’s Law has significantly impacted law enforcement practices in Florida. Police officers are faced with the challenge of adhering to this new body of law while still preparing thorough, timely, and effective investigations. The language of the law requires agencies to afford specific rights to all victims, including those who are not cooperating with the agency’s investigation. Such a victim may have made the decision that speaking to the police would adversely impact their safety; for example, they may believe their survival depends on not engaging with law enforcement. If a sworn officer tries to reach out to a victim who considers the phone call a threatening gesture, the complaint to the agency may note a sense of intimidation by the police agency, as opposed to noting an intention of open communication with the victim to solicit information. This raises the question as to whether such contact is considered a "reasonable effort" as required by the law. Agencies may consider modifying their policies to ensure officers are appropriately obtaining consent to contact suspected victims in order to avoid the appearance of coercion by law enforcement. A fine line exists between a victim’s right to privacy and their right to have the opportunity to choose to respond to law enforcement agencies.
Even the judiciary has been affected by Marsy’s Law. A married couple charged with drug possession in St. Petersburg, Florida, moved to quash the search warrant that resulted in the police seizure of their property from their home. Newspaper reports indicated the suspected narcotics were easily observed once the search began by law enforcement (and does not appear to be at the center of this decision). However, the warrant was voided by two Pinellas County Judges, in part because it did not benefit from a "party" to oppose the petition being permitted to intervene in the initial stages in the judicial process. The wording in the warrant did not give notice about the victim’s rights. The ability of a victim to consult with formal legal counsel was therefore denied.
Marsy’s Law has created some challenges for officers issuing traffic citations. The law requires law enforcement to provide a victim with the case number and agency name on a citation. However, if the officer is unaware of a victim’s contact information, this requirement could be interpreted more broadly than the information provided on the citation itself. The citation would then be incomplete both as to its statute numbered technical deficiencies and/or proper victim notification.
Marsy’s Law in Florida: The Future
Future amendments to "Marsy’s Law" in Florida are inevitable. The law has already spawned its share of litigation and will likely continue to do so.
Despite its good intentions, there are issues with the law that have yet to be fully fleshed out. For instance, the limit of the number of times a victim must be heard during trial is four times, allowing for unlimited motions to revocate. There may need to be a limit put on that number. Also, the law doesn’t address what happens in the event a victim desires to decline notification. Do they not receive notification at all? Or do they likely receive notification by default then, at the parties expense, opt out at some point? That scenario could be cost prohibitive for those who want notice but can’t bear the burden of excessive mileage charges. Further, while the law gave no time frame for notification requirements, the law will likely need to include a provision addressing timing for additional notice when appeals and habeas corpus petitions are pursued.
It may also be necessary to address the cost for notifications which the DPS must incur. The DSS also has a role in notifying victims, it is not just the responsibility of the state attorney.
Amendments should also provide clarification on what rights are definite before the jury versus what rights aren’t definite until the jury is selected. A statute may be required to identify more fully whether a victim’s presence is required in jury selection or the initial stages of a trial.
The law was amended in May 2020 to expand a victim’s rights to receive free transportation to and from court proceedings , which identifies the victim’s right to be present during the entire criminal case, including any pretrial proceedings.
A bill also was introduced related to the allocation of state funds, also to allow a victim to participate in criminal proceedings even if the crime is not charged as a felony (House Bill 171). As this bill ultimately failed, Florida officials may introduce further changes and amendments to the bill through legislative action.
Additional changes also may be made through judicial changes and the courts themselves. Regardless of how the law is amended, changes are certain.
There may be other amendments introduced on behalf of the parties or the state, which sometimes do not appear partisan. Certainly, some by-product of Marsy’s Law, likely unintended, was to broaden the rights of victims during criminal trials. It appears that victims may be engaging with the system earlier in the process with more expectations of involvement than they had before.
The law affords victims several rights that were not there before, and courts may interpret these rights err on the side of protecting the victim and their alleged rights. That’s not necessarily a bad thing, but it may impact more prosecutions than those who victimize victims in Florida.