Marsy’s law has strong NH support, but critics say bill is vague and costly

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Marsalee “Marsy” Nicholas, inspiration for Marsy’s Law.

MANCHESTER, NH – A constitutional amendment known as Marsy’s Law that affords rights to crime victims, CACR 22, has strong support in New Hampshire. It is co-sponsored by 23 of 24 state senators, including Manchester Senators Kevin Cavanaugh (D-16), Lou D’Allesandro (D-20), and Donna Soucy (D-18). It is supported by Gov. Chris Sununu, and numerous community organizations.

But it also has its detractors, who say the bill is costly, vague, wordy and, where already in practice, obstructs the flow of public information. At least one state is considering repealing the amendment, which has cost South Dakota upwards of $5 million since it was enacted in 2016

The bill was written by Marsy’s Law for All, a national campaign backed and financed by Henry Nicholas, a tech-boom billionaire who built microchip-maker Broadcom Corporation, a Fortune 500 company. He organized and funds the campaign in memory of his sister, Marsalee “Marsy” Nicholas, a murder victim. Forbes states his net worth at $3.6 billion.

The Facebook page, which shows testimonials by victims and representatives of community groups, states the campaign’s mission:

“Unlike those who are accused and convicted of committing crimes, victims in New Hampshire have NO rights within our state’s constitution. This leaves us with an imbalanced criminal justice system that prioritizes the rights of the convicted over the rights of those they victimize. It is a system that fails to treat all people equally and it leaves victims of crime without a meaningful voice.

“No matter how vocal the advocates, no matter how conscientious the police or prosecutors, there will be someone who has been victimized who faces the justice system alone. This person should have basic rights on par with the criminals who took their property, their dignity, or their loved ones. They should have the right to know when the offender is being released on bail and they should have the right to be heard when the offender is up for parole. New Hampshire respects and supports equality and basic fairness. It is a part of our culture; it is our way of life here. It’s time to give victims equal rights under the law.”

Concord lobbyists hired by national campaign

Marsy’s Law for All hired Amanda Grady Sexton, of Concord, to direct its state effort. Sexton serves as director of public affairs for the Coalition Against Domestic and Sexual Violence, a non-profit statewide lobbying organization. She has hired state notables for her lobbying staff of 12 and legal counsel. The budget will pay for paid media coverage.

The first public reports on lobbyist spending must be filed by April 25. Marsy’s Law for New Hampshire, the political committee to promote the amendment, doesn’t have to disclose its initial spending until June 20.

Senate Legislative Committee is considering the bill

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Sen. Sharon Carson, R-Londonderry

Marsy’s Law must pass the Senate Legislative Committee and then the full Senate by March 22 (“crossover day”) after which it goes to the House, which must pass it by May 24.

Bill sponsor Sen. Sharon Carson (R-Londonderry) who represents District 14, told WMUR that she expects the Senate Judiciary Committee, which she chairs, to vote on the proposal next week.

Any amendment to the New Hampshire Constitution must pass on a statewide general election ballot. The first requirement is a three-fifths majority vote in the House of Representatives and the State Senate. Then voters must endorse the proposition by a two-thirds majority.

With its rigorous approval process, New Hampshire has a history of mostly failed attempts at amendments.

Albert “Buzz” Scherr, a professor at the University of New Hampshire School of Law, said “If it is put in the constitution, it is really hard to fix it, but we can change statutes more simply. We should slow down and think about it. I am in favor of putting in a provision, but not turning things upside down.” He said that there is support in the House and Senate for a more simplified approach.

Manchester Senators say they will vote for the bill 

Sen. Kevin Cavanaugh (D-Manchester) said, “It’s important to do everything we can do to protect victims’ rights so I support it. I know they are working on amendments to it. I will look at it with the amendment and then evaluate it.”

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Sen. Lou D’Allesandro, D-Manchester

Sen. Lou D’Allesandro (D-Manchester) sponsored and still supports the bill.

“Victim’s rights are something whose time is come. If the bill passes the test of constitutionality, I will support it,” said D’Allesabdro, who expects it to pass the Senate.

D’Allesandro expressed skepticism about the criminal prosecution performance of the Manchester City Solicitor and the Hillsborough County Attorney. He said, “I’ve had some concerns. We need more accountability for those pursuing justice.”

In 2017, Manchester City Solicitor Tom Clark resigned when it was discovered that a prosecutor failed to get tough on suspects charged with domestic violence crimes. The Hillsborough County Attorney’s office was not under investigation, but is responsible for “the integrity of prosecutions at the local level,” according to Attorney General Gordon MacDonald. D’Allessandro said, “With a new solicitor, we are doing better.” Emily Rice is the Solicitor now.

Attempts by ManchesterInkLink to reach State Sen. Donna Soucy, (D-Manchester) for comment were unsuccessful.

Critics say proposal is too wordy

Despite strong bipartisan political and community support, some critics see issues when looking under the hood of the measure.

Scherr says that, at 395 words, the amendment – at least from an academic perspective – is very large. The text was provided by Marsy’s Law for All, and the Senate Legislative Committee is said to be revising it before a vote.

“Longer legislation leaves more opportunities for problems,” he said, adding that the wording is “vague and open to interpretation.”

Both Scherr and Carol Ann Conboy, a retired New Hampshire Supreme Court justice, have proposed a concise, 21-word alternative in a letter published in the Concord Monitor, which reads in part: “A victim of crime has the right to be treated with fairness and respect for the victim’s safety, dignity and privacy.”

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Attorney General Gordon MacDonald

In their letter, Scherr and Conboy write: “Our proposal reflects New Hampshire’s historic approach to embedding individual protections in our state constitution. By design, our constitution is a minimalist document intended to lay out a set of operating principles that leaves implementation to the Legislature. Unlike our proposal, CACR 22 copies the 395 words of a model law, parts of which have been adopted by other states, without making a single word change to reflect New Hampshire’s constitution and existing statutes addressing victims’ rights. The approach taken in CACR 22 is unlike any approach New Hampshire has ever taken regarding constitutional guarantees…”

On March 5, Attorney General Gordon MacDonald proposed a 306-word revisions in a letter sent to Senator Carson. It includes a slight rewording of the proposal by Scherr and Conboy and adds a definition of “a victim of crime,” specifies victim’s rights and their enforcement, and exempts the state and its employees from damages.

Critic decries spending on bill, praises existing county efforts

“The proposal is attacking county attorneys and victim witness advocates who are doing a fantastic job,” says Scherr. “There is no need for the amendment if they are actually doing their job. Maybe they need more funding. This is a county issue. The millions they are spending are better spent on county resources.”

The Hillsborough County Attorney’s Northern District Office, located in Manchester, is staffed by 11 full-time prosecuting attorneys, six full-time support staff, three part-time support staff, three victim witness advocates, one part-time investigator, one paralegal and several legal interns.

ACLU representatives cite bill as an “equal rights fallacy”

In a February 10 opinion piece, Gilles Bissonnette, ACLU-NH Legal Director and Defense Attorney Mark Sisti criticized, “…the equal rights fallacy of Marsy’s Law,” adding, This notion of ‘equal rights’ is a seductive appeal to one’s sense of fairness. But it is a misnomer that misunderstands how the New Hampshire Constitution works. The state provides constitutional rights to the accused in a criminal proceeding because the state is attempting to deprive the accused – not the victim – of life, liberty and property.”

“As good as the appeal to ‘equal rights for victims’ may sound, this appeal attempts to change the role of individual rights in the New Hampshire Constitution. The victims’ rights envisioned in Marsy’s Law are not being enshrined in the New Hampshire Constitution to provide a check on the state’s overwhelming power. Rather, these rights are designed to be enforced against the accused by the victim and the state, even before the accused has been convicted of a crime,” wrote Bissonnette and Sisti.

Press finds barriers to crime information

In North Dakota, South Dakota, and Montana, reporters have experienced barriers under Marsy’s Law to limiting public information:

  • BISMARCK, N.D. (AP) – Police in Bismarck aren’t releasing the name of an officer involved in a shooting — in part because the officer is invoking a new law that expands the rights of crime victims. Chief Dan Donlin tells The Associated Press the officer invoked Marsy’s Law, approved by voters just last year. Donlin says names are typically released after shootings are reviewed by the state — but he’s not sure that will happen now.
  • SOUTH DAKOTA – On Friday, Dec. 22, the South Dakota Highway Patrol released the name of Cade Stensland, 31, of Larchwood, Iowa, as the man killed Thursday when his cargo van rear-ended a stalled charter bus on Interstate 90 about 20 miles east of Rapid City. There were 56 passengers on the bus. The name of the 39-year-old woman driving the bus, and the name of the company she works for was not released “because Marsy’s law was invoked,” according to a news release from the Highway Patrol. (LINK)
  • MONTANA – Lee Newspapers argued in its filing Monday that “Marsy’s Law” will limit the right to know and right to participate under the Montana Constitution, as well as state and federal freedom of the press rights. “This would really put a freeze on information and make it onerous, if not impossible, to report on or observe public courts,” Billings Editor Darrell Ehrlick said, noting the law could effectively remove the ability of the press and wider public to observe its government in action – a critical tool to hold it accountable.
  • FARGO – Police in Fargo and West Fargo might restrict information about the identity of crime victims and the location of crimes as a result of Marsy’s Law, the new victim’s rights law passed by North Dakota voters on Nov. 8.

South Dakota may repeal Marsy’s Law amendment

South Dakota, which passed the bill In 2016, could be the first state to repeal it. KSFY reports that “Marsy’s Law laid the ground work for a costly victim’s notification system, with a price tag of more than $100,000 dollars for Minnehaha County. It’s costing the state upwards of $5 million.”

South Dakota State Rep. Mark Mickelson, R-SD, said that the bill is, “vague and unclear about what kind of information about crimes can be released to the public or the media.”

“They’re not reporting rapes and sexual assaults to the campus community at Augustana as a result of Marsy’s Law and that’s certainly not the intent and I just had a woman email me this last week from Watertown who can’t get the accident report of her husband who was killed in an accident,” Mickelson said.

Marsy’s law has passed in other states, including California, Illinois, Montana, and Ohio.

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