Victims’ rights amendment hits speed bump on the way to House vote

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NH State House.

CONCORD, NH – What’s typically a dead-end may be just a speed bump for “Marsy’s Law.” On April 26 the bill will go for a full floor vote before the legislature, despite a non-binding “nay” vote by the committees that considered it.

CACR 22 would enshrine victim’s rights in the state constitution. Proponents believe it will improve the experience of victims of crime by elevating their rights in the constitution. The amendment was rejected by a 24-11 vote of a joint hearing of the House Judiciary and House Criminal Justice and Public Safety Committees on April 18.

The amendment will need a three-fifths majority vote in the House to be included on the ballot this fall. It passed the Senate by a 20-3 vote in March. If it gets on the November ballot, voters will have to endorse the proposition by a two-thirds majority to amend the constitution.

Opponents of Marsy’s Law have raised a number of financial, legal, and procedural concerns about it, and a Stop Marsy’s Law in NH website materialized a few weeks ago, posted by an anonymous entity.

Concerns about influence by out-of-state money

The bill is championed and was written by Marys’s Law for All, a national campaign backed and financed by Henry Nicholas, who organized and funds the campaign in memory of his sister, Marsalee “Marsy” Nicholas, a murder victim. Nicholas is also a tech-boom billionaire who built microchip-maker Broadcom Corporation, a Fortune 500 company, in which he holds a 3 percent stake. Forbes states his net worth at $3.6 billion.

Amanda Grady Sexton

Marsy’s Law for All hired Amanda Grady Sexton of Concord to direct its state effort. Sexton directed the Coalition Against Domestic and Sexual Violence, a state organization, for 17 years. She has hired state notables for her lobbying staff of 12 and legal counsel. The budget will pay for paid media coverage.

“The proponents for this have so much money, that if this gets on the ballot, it absolutely will pass,” state Rep. Gary Hopper, R-Weare, told the Union Leader.

“They have millions and millions of dollars to sink into advertising, and the only thing voters will recall is the governor talking to victims who are very upset and emotional. But this is a constitutional amendment,” Hopper said.
“We can’t decide it on emotion. We have to decide it on reason.”

Concerns about the cost of expanded victims’ services

At the April 18 hearing, Albert “Buzz” Scherr, a professor at the UNH School of Law, presented a cost estimate of $1.44 million per year for counsel for victims, including $300,000 to $450,000 per year for 10,000 cases in Superior Court, and $660,000-$990,000 per year for Circuit Court cases.

Scherr estimated a growth in services:

  • The inclusion of misdemeanors adds around 44,000 cases to the caseload of victim witness advocates. The current Victim Bill of Rights statute applies only to felonies.
  • Adding Class A and B misdemeanors would likely quadruple the budgets of prosecutors for victim services.
  • CACR 22 would also apply across the board to all juvenile offenses, which are now covered under separate statutes.

Scherr points out that his estimate of $1.44 million per year for counsel to victims does not include the costs for additional bureaucratic infrastructure needed, nor the cost of extended detentions while waiting to locate victims. CACR 22 gives victims a constitutional right to be present and be heard at bail and detention hearings.

“In other states, people have been detained while law enforcement tries to locate the victims. A day in county jail costs $110 per inmate,” Scherr has said.

Rep. Paul Berch, D-Westmoreland, who moved the bill be reported to the full House as “inexpedient to legislate,” asked, “How do we pay for this? We have two choices: a tax increase potentially in the millions, or, taking the same resources we have now and spreading them out among all these victims, with each getting a tiny bit. Victims of domestic and sexual violence will get much less, so Walmart can get some.

“The costs of victim services are mostly at the county level, so this would be an unfunded mandate or downshifting. In the few states that have adopted Marsy’s Law, it caused havoc at the county administrator level,” Berch said.

These cost concerns are highlighted by an April 21 Union Leader report, in which County Attorney Dennis Hogan says a budget increase of nearly $500,000 is needed to hire more prosecutors, victim-witness advocates and support staff to rescue a “department on the brink of collapse.”

While Hogan spoke about a shortfall in prosecutors, the department also funds victims witness advocates.

The article states, “In total, Hogan wants to add five new prosecutors to his staff, three victim witness advocates and five legal secretaries.”

Concerns about paying restitution

Scherr also pointed to concerns with restitution:

  • “CACR would create a new constitutional right to restitution, not limited by what a defendant can afford to pay.’
  • “The broad definition of victim – including insurance companies and corporations – also expands those eligible for this grant of restitution. In interpreting constitutions, we look at the actual language. If it says a victim is a person, and Citizens United says a corporation is a person, then corporations can be victims.”
Rep. Paul Berch, D-Westmoreland

Berch gave two examples:

  • “If a Manchester city employee loots a million dollars, every taxpayer is a victim. Does every taxpayer get a notice? The restitution has to be full for each of them.”
  • “When the average defendant is locked up, they have no ability to pay. If there’s a right to full restitution (and the State guarantees constitutional rights), the states is on the hook for paying.”

Berch also pointed out a conflict. Marsy’s Law states:

“This section does not create any cause of action for compensation or damages against the State, any political subdivision of the State, any officer, employee, or agent of the State or of any of its political subdivisions, or any officer or employee of the court.”

Berch said, “If you are the victim of a violation by anyone in the state, tough luck.”

He also noted a quirk in the law: “In New Hampshire, the accused doesn’t have the right to be present at his or her arraignment; it can be done by video link while they’re in jail. But, if the defendant doesn’t have a right to be present, then neither does the victim.”

Concerns raised by criminal defense lawyers

Katherine Cooper, Executive Director of the New Hampshire Association of Criminal Defense Lawyers, said:

“This amendment is taking away the ability of the accused to defend themselves, and giving a person control over someone else, before we even know if they’re guilty. It provides victimhood as a legal status before a factual determination if a crime occurred, and whether a specific person is at fault. Even with ample evidence, where there is clearly a victim, there may be no determination of who’s at fault. There could be multiple defendants, a person could be wrongly charged, or there may be no person at fault.’

“The courts don’t need a constitutional amendment to balance rights. They do that already. There have been many restrictions put in place over the years that clearly protect victims.  It has been a balancing act over the years, so the defendants can do investigations, while protecting the privacy of victims.’

““Once you make a constitutional amendment, it’s really hard to change. The Founders wrote constitutional rights to protect defendants from overreach and abuse by the government. We don’t need constitutional rights to protect victims, because the government is not trying to restrict their freedom or fine them. When a victim has been harmed, that is at the hands of an individual. Victims don’t need protection from the government in a criminal case.’

Concerns about juvenile justice

Michael Skibbie

According to Michael Skibbie, Policy Director of the Disability Rights Center – NH, their organization has not taken a position on the amendment as a whole, but they do not believe it should apply to juvenile delinquency cases, due to confidentiality concerns.

“Children who end up in juvenile delinquency court have a significantly high rate of disability, abuse, neglect, and trauma. So one of the focus areas for juvenile court proceedings is to determine how to best to provide services to kids and families, and how best to address the behaviors and causes of behaviors that brought child into court. For example, it’s very common in juvenile proceedings to discuss the child’s school performance, if they were in the child protective system, and if they were the victim of sexual or physical abuse,” Skibbie said.

 “The effectiveness of the juvenile system will decline if confidentiality is diminished. It’s one thing, to tell how the court how the victim is affected, which current law allows. It’s another thing to say that the victim’s family should be sitting there while discussing the most sensitive things in the defendant child’s family and the family’s life,” Skibbie said.

Concerns about First Amendment conflicts

Berch described legislative work he has done on privacy issues with Rep. Neal Kurk (R-Hillsborough).

“We worked on privacy issues relevant to drones. We made sure the media is not limited in using drones for news stories. No such effort was made here. It will inhibit media coverage of incidents,” Berch said.

When asked about First Amendment conflicts, Sen. Donna Soucy (Manchester) said she sees no conflict and stated that she expects no problems.

South Dakota has already passed Marsy’s Law, where lawmakers are planning to change the measure to address First Amendment concerns. According to this  Associated Press story, House Speaker Mark Mickelson, sponsor of the proposed alterations to the law, said the amendment has had “unintended consequences.”

Lynne Forbush testified before South Dakota lawmakers how Marsy’s Law was invoked following an accident in which her husband was killed in Aug. of 2017 in an accident in which a 16-year-old driver crossed a highway center line and hit her husband, head-on. The 16 year old was also killed in the crash. Forbush said the teen’s mother invoked Marsy’s Law, forcing Forbush to hire a lawyer to get an accident report to get an insurance claim started.

“When Forbush’s family members asked about Marsy’s Law, she said they were told nobody knew how to handle the amendment because it was poorly written,” according to the AP report.

Argus Leader, a Sioux Falls newspaper, cites freedom of the press as another casualty of Marsy’s Law, illustrated by a situation in which a student was shot and killed, “yet police refused to confirm his identity, pointing out that the family had invoked Marsy’s Law.”

The unintended consequence in that case allowed law enforcement to withhold information including crime location and the victim’s name — information that was previously considered public information. In other cases, alleged offenders were held longer behind bars because victims weren’t able to be notified of a bond hearing.

Argus Leader columnist Stu Whitney explains:

“That’s why some expressed surprise when Argus Leader Media published the name of the shooting victim based on his obituary, death certificate and interviews with those who knew him well, such as his track coach, high school friends and a former mentor through Big Brother Big Sisters.

“Those who accused our reporters on social media of breaking the law were not aware that First Amendment rights are not superseded by the privacy provisions of Marsy’s Law. With a story of undeniable news value such as the alleged murder, we owe it to our readers to shed as much light as our journalistic abilities allow, including the name of the deceased.

“The fundamental difference between a private media enterprise and a taxpayer-supported government agency strengthens our strategy to responsibly provide information that police departments will not. Any failure to do so would reflect poorly on the role of a free press.”

Whitney’s also talks about a group of newspapers from Montana, which joined the local ACLU chapter in a suit challenging the constitutionality of Marsy’s Law,  and quotes Darrell Ehrlick, an editor for the Billings Gazette, who says Marsy’s Law restrictions prevent the media from performing basic functions.

“’We don’t want to re-victimize people. But you can’t trade away the public’s right to observe the system or to know what’s happening,” Ehrlick said. “The public’s right to know provides a check on the system.”