Marsys Law Crime Victims

FILE - In this May 30, 2015, file photo, Henry T. Nicholas III talks during the Nicholas Academic Center's 2015 Graduation ceremony at the Disneyland Hotel in Anaheim, Calif. After his sister was murdered, Nichols III spent millions to enshrine a so-called bill of rights for crime victims into California's constitution. Now, he is taking his effort into the nation's heartland, including Oklahoma, spending millions on teams of lobbyists and PR companies to influence legislatures and amend state constitutions all over the country. (Eric Reed/AP Images for Nicholas Academic Centers, File)

    After his sister was slain and his mother ran into the accused killer, out on bail, in a grocery store a week later, California billionaire Henry Nicholas became a fierce advocate for the rights of crime victims.

He donated millions from his fortune as co-founder of tech giant Broadcom to create a so-called "crime victims' bill of rights"— dubbed Marsy's Law after his slain sister Marsalee — and add it to California's constitution in 2008.

Now Nicholas has taken his crusade nationwide, with teams of lobbyists, public relations firms and high-powered political strategists converging on other state capitols for a similar push. But while the idea of standing up for crime victims is an easy sell politically, complaints are mounting that the initiative is becoming a testament to the danger of unintended consequences.

 

The new law passed a year ago in South Dakota, has changed the way public officials can talk about crimes, including withholding information about alleged crime victims but also their relatives.

It also has limited how much information is released about traffic crashes, when the alleged, or possible victims, aren't yet known.

 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.

It happened at 8:45 p.m. and the bus had stalled in the middle of both eastbound lanes when the power in the bus went out, so it had no lights on, according to the Patrol report.

 It snowed about a half-inch that day in that area and winds gusted as high as 40 mph, according to the National Weather Service.

Both vehicles were eastbound.

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. 

Stensland was wearing a seat belt; he was driving a 2013 Ford E-250  cargo van. 

The bus was a 2013 Motor Coach bus. Motor Coach Industries, based in Winnipeg, has a bus manufacturing plant in Pembina, North Dakota.

Its common bus models are about 40 feet long or about 45 feet long.

None of the passengers on the bus, nor the bus driver, was injured. 

Although in rear-end crashes, the rear vehicle driver typically is seen as at-fault, in some cases the other vehicle driver could also be found at fault for negligence, depending on the circumstances. 

In this crash, it's possible it wouldn't be a criminal case, but become a civil case in which fault is determined by a jury.

The Highway Patrol was investigating the crash, according to the Friday news release.

Not just defense lawyers, but some local prosecutors, police and victims' advocates are concerned that the law's extensive victim-notification requirements could impose crippling costs and administrative burdens on smaller towns and counties with limited resources. Supporters maintain those complaints are exaggerated and that any increased workload is worth the benefit of helping crime victims.

Still, law enforcement and victims' advocates in some places are calling for its defeat or reversal.

In South Dakota, which ranks 46th in population in the U.S., Nicholas spent more than $2 million on consultants, strategists and advertising for the campaign. The amendment was approved in 2016 with nearly 60 percent of the vote, but Republican Speaker of the House Mark Mickelson now says he intends to push for its repeal next year because of the costs.

 "Our local government does not have enough money to operate and protect victims adequately already. Now we have these unfunded mandates that are coming through Marsy's Law to local governments without the resources to pay for them," said Leo Gallagher, county attorney in Lewis and Clark County, Montana.

Montana passed the measure in 2016, but the state's Supreme Court recently tossed it out citing flaws in how it was written.

Marsy's Law requires that crime victims be notified and heard in most criminal proceedings, receive protection and "full and timely" restitution and be allowed to confer with prosecutors. It also expands victims' privacy rights and prohibits "unreasonable delay" of criminal cases.

But it apparently stretches the definitions of "victim," to include not-that-close relatives of the actual victim of a crime, some say. That means law authorities must notify many more people in many cases if Marsy's Law is invoked, as well as keep information about them from the public.

The measure has been approved by voters in six states — California, Ohio, Illinois, Montana, North Dakota and South Dakota — and efforts have been launched in at least nine more.

Skeptics are trying to push back.

"When we first heard about it, we thought it was a no-brainer," said Darla Juma, who runs the victims' witness assistance program in two counties in North Dakota, where the ballot measure passed last year. "But there are counties that don't have a victims' advocate, and now they're having to send notices, notify victims. Who's going to pay for that work?"

Some prosecutors complain that the requirements are especially impractical for white collar cases with large numbers of victims, such as securities frauds involving thousands of stockholders.

"You really would clog the system if you're going to give thousands of people the right to be heard at every stage of a proceeding," said Barry Pollack, former president of the National Association of Criminal Defense Lawyers.

Marty Lambert, the top prosecutor in Gallatin County, Montana, the state's third-largest county with about 90,000 residents, said he would have to hire two additional staffers for all the hearing and offender-release notices.

But law enforcement agencies in California, where the law has been in effect the longest, are finding a way to adjust, though not easily.

In that state, "I wouldn't call it a catastrophe," said Robert Weisberg, co-director of the Criminal Justice Center at Stanford University. "I would call it a notable administrative burden."

Supporters of Marsy's Law say there simply isn't any evidence of law enforcement being overwhelmed. Nicholas did not respond to an interview request.

In Oklahoma, where the proposal will appear on the state ballot in 2018, David Prater, the top prosecutor in Oklahoma's largest county, said he's keeping an open mind.

"Anything we can do to allow victims a greater voice in the system and to ensure that their rights are upheld, I think that is very important," Prater said.

Even states that welcomed the law have been amazed by the promotional juggernaut behind it.

In South Dakota, which ranks 46th in population in the U.S., Nicholas spent more than $2 million on consultants, strategists and advertising for the campaign. The amendment was approved in 2016 with nearly 60 percent of the vote, but Republican Speaker of the House Mark Mickelson now says he intends to push for its repeal next year because of the costs.

Nicholas also spent about $2 million in neighboring North Dakota, or about $6 per voter.

In Oklahoma, the proposal sailed through the Legislature this year with the help of nine lobbyists and two public relations companies. Marsy's Law pamphlets were circulated everywhere that crowds formed, even outside football games.

"The real export from California is indeed the whole lobbying operation," said Weisberg, the professor at Stanford. "We've helped birth the creation of a vast industry that knows how to put forth statewide ballot campaigns."

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