Marsalee “Marsy” Nicholas should not have been stalked and killed by her ex-boyfriend in California in 1983. And family members should never have had to encounter the killer in a grocery store just a week after her death, unaware that he had been released on bail.
But Maine does not need to amend its constitution — a serious, long-lasting move — in Marsy’s name to make sweeping promises to victims that the state can’t keep and that would have unintended legal consequences, to fix problems the state doesn’t necessarily have.
The bill, LD 1168, is being pushed by an out-of-state group called Marsy’s Law for All, which was founded by Marsy’s brother, billionaire Henry T. Nicholas, in 2009. Nicholas, who co-founded semiconductor company Broadcom Corp., aims to add protections for victims’ rights to all state constitutions and ultimately the U.S. Constitution.
The group has turned its sights on Maine and backed the effort with money, hiring lobbyist Josh Tardy, and four associates, on a $10,000-a-month retainer to pass the one bill. Marsy’s Law for All has spent $100,000 so far in 2017 — the second-highest amount by a single group in Maine.
On a surface level, the changes being proposed to the Maine Constitution seem reasonable. LD 1168 would give the victim of any crime the right to be informed when the alleged offender is released, to receive “timely notice” of all public proceedings, to receive prompt and full restitution, to be heard at any proceeding “at which a right of the victim is implicated,” to refuse a deposition or discovery request, and to have court proceedings start “free from unreasonable delay” and conclude quickly.
But putting those requirements in the constitution, especially without funding to back them, would do little to ease an already overburdened court system and would sow legal confusion about how victim remedies would be carried out. For instance:
A victim would be defined more broadly than anywhere else in state law as a person who is “directly and proximately harmed by the commission of the offense.” That means someone who has spare change stolen out of his or her car, or just witnesses a crime, could qualify for the same level of services as someone who was sexually assaulted.
It’s already law for victims to receive notifications, “when practicable,” about the details of plea agreements, the proposed dismissal of a case, the filing of an indictment in a case, and the time and place of the trial and sentencing. They already have the right to participate at sentencings, plea agreement hearings, and hearings where an offender is being considered for early termination of probation.
It’s also already law for victims of major crimes in Maine to be notified when offenders are released from jail or prison, if they want to be. In the case of an alleged crime of domestic violence, sexual assault or stalking, the jail or police have to alert victims if a defendant is released on bail prior to being convicted.
But just because something is law doesn’t mean it will be carried out. The current system already has difficulty keeping up with these requirements: The jails do not have victim advocates, and those in prosecutors’ offices are already overwhelmed.
The courts already cannot ensure that victims receive the restitution they are owed by offenders. If the state wanted to fix the problem, one option would be to create a fund that would guarantee victims get their amount upfront and then collect the money from offenders. A constitutional amendment wouldn’t do that.
Rather than amend the state constitution, the Maine Legislature should invest resources in fulfilling the laws it already has and show victims the respect they are due.
Current law can be altered to improve the notification or court participation process if needed, rather than creating a constitutional amendment that would be nearly impossible to undo. If people later have regrets, it would require both a two-thirds vote by the Maine Legislature and then approval by voters at the ballot box to reverse the damage.
Opposed by the Maine Chiefs of Police Association, the Maine Commission on Domestic and Sexual Abuse and others who understand what’s at stake, this law needs to be voted down when lawmakers return next session. Actually figuring out how to improve a complicated system takes work. Doing that hard work is what will truly honor victims.