Kara Sears
Marsy's Law, also known as the California Victims' Bill of Rights Act of 2008, has been the subject of much debate regarding its constitutionality. The law, which aims to provide crime victims with enforceable constitutional rights, has sparked legal challenges in several states, including California, Florida, Wisconsin, Pennsylvania, and Montana. Critics argue that the law infringes on the rights of defendants and restricts press freedoms, while supporters believe it gives victims a much-needed voice in the criminal justice system. With courts overturning ballot measures in some states and upholding the law in others, the constitutionality of Marsy's Law remains a complex and evolving issue.
| Characteristics | Values |
|---|---|
| Purpose | To give crime victims meaningful and enforceable constitutional rights equal to the rights of the accused |
| Rights | To be treated with dignity and respect, to be notified of their rights as a victim of crime, to be notified of specific public proceedings, and to be present and heard during those proceedings |
| Criticism | Unconstitutionally restricts defendants' rights by allowing prosecutors to withhold exculpatory evidence, harms victims by restricting their rights to discovery, depositions, and interviews |
| States where it is adopted | California, Florida, Georgia, Illinois, Kentucky, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, Wisconsin, and Tennessee |
| States where it was struck down | Pennsylvania, Montana |
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What You'll Learn
Does it restrict defendants' rights?
Marsy's Law is a campaign that seeks to place crime victims' rights in state constitutions. It was first passed in California in 2008, and has since been passed in several other states. The law aims to give victims a stronger voice in the criminal justice system, by providing them with enforceable constitutional rights equal to those of the accused.
However, critics argue that Marsy's Law unconstitutionally restricts defendants' rights. The law allows victims to refuse to provide evidence and discovery to the accused, which critics argue undermines the principle of presumed innocence and increases the risk of wrongful convictions. It also allows prosecutors to withhold exculpatory evidence under certain circumstances. In addition, the law's vague language and broad definition of "victim" have led to concerns about its potential to restrict defendants' rights. For example, police in multiple states have used Marsy's Law to conceal their identity from the public in use-of-force incidents.
The ACLU and other civil libertarians have criticized the law for undermining due process and for being a threat to existing constitutional rights. They argue that equating victims' rights with those of the accused is a fallacy, as the two sets of rights serve different purposes. Defendants' rights are rights against the state, while victims' rights are against another individual. By strengthening the state's hand against a defendant, Marsy's Law undermines a fundamental principle of the US legal system.
The law has also faced legal challenges in several states, with critics arguing that it curtails the legitimate rights of criminal defendants and the interests of a free press. The California Supreme Court is currently reviewing two cases that address whether the parole impact of Marsy's Law is unconstitutional. In one of the cases, the court found that the risk of increased incarceration resulting from longer parole denials under Marsy's Law violated ex post facto principles.
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Does it conflict with freedom of the press?
The American Civil Liberties Union (ACLU) has raised concerns about Marsy's Law, a set of state constitutional amendments that give crime victims new legal rights, conflicting with the freedom of the press. The law includes a constitutional right to privacy for victims, but it is unclear how this would work in practice. It is uncertain whether it would reduce the amount of information that the press can provide to the public about crimes or give victims and their attorneys control over the limits of a victim's testimony at trial.
The ACLU argues that the law's ambiguous language and unintended consequences are particularly concerning because, unlike a statute, legislators cannot easily fix problems that arise with a constitutional experiment. Civil libertarians have also warned that the law curtails the legitimate rights of criminal defendants and the interests of a free and vigorous press.
In Florida, media organizations joined the city of Tallahassee in a dispute over the release of the names of officers involved in fatal shootings. The city wanted to release the names to promote transparency and build public confidence, but the police union objected, arguing that the officers qualified as crime victims. The Florida Supreme Court ruled that Marsy's Law does not bar the release of police names, pleasing advocates for free speech and police accountability. However, this ruling was specific to the disclosure of police identities, and it is unclear how the law will be interpreted in other cases involving the press.
Additionally, the ballot description of Marsy's Law has been criticized for being incomplete and misleading, and state high courts in Pennsylvania and Montana have struck down the law as breaching single-subject rules. While the law aims to give victims equal rights to the accused, critics argue that it undermines due process and increases the chances of an innocent person being convicted.
Overall, while Marsy's Law seeks to protect the rights of crime victims, it has faced significant opposition due to concerns about its potential impact on the freedom of the press, defendants' rights, and constitutional due process.
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Does it increase incarceration?
Marsy's Law, enacted in California in 2008, has been criticized for its impact on incarceration rates and the parole process. The law, which gives crime victims constitutionally protected rights, has been found to increase the time between parole hearings, impacting the timely release of incarcerated individuals.
One of the main ways in which Marsy's Law affects incarceration is by granting parole boards greater powers to deny inmates parole and extend the time between hearings. A Stanford University study of 32,000 California prisoners serving life sentences found that the likelihood of parole for convicted murderers decreased after the law was passed. The study also revealed an increase in the lifer population and the average number of years served. Similarly, a UCLA law student's analysis of 211 parole hearings found a doubling in the average length of time between hearings, with no significant increase in victim participation.
The law has also been criticized for prolonging pre-trial detention and other forms of incarceration. The expansion of notification rights under Marsy's Law has led to delays in proceedings, resulting in longer periods of detention for non-convicted citizens. The right to be heard in plea agreements has also contributed to increased incarceration time, as victims' expectations of "justice" may differ from public interests such as rehabilitation and fair sentencing.
Additionally, Marsy's Law has been found to impact the financial aspects of incarceration. The law mandates that any funds collected by a court or law enforcement agencies from a person ordered to pay restitution go towards that restitution first, potentially impacting an offender's ability to pay other fines and fulfill obligations. The law also grants victims the right to timely restitution, regardless of the financial abilities of the defendant, which can create barriers to successful re-entry after serving sentences.
While Marsy's Law aims to protect the rights of crime victims, its implementation has had significant implications for incarceration rates and the parole process in California. The increased powers of parole boards and prolonged periods of detention have led to criticism and legal challenges, highlighting the complex interplay between victims' rights and defendants' freedoms.
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Does it violate ex post facto principles?
Marsy's Law, enacted in California in 2008, has been criticised for violating ex post facto principles. The law, which was passed as a Constitutional Amendment, aimed to give crime victims constitutionally protected rights, including notifications about their rights, involvement in criminal proceedings, privacy, and restitution.
One of the key issues with Marsy's Law is its potential to impact parole decisions and increase incarceration rates. A Stanford University study found that the law has contributed to an increase in California's lifer population, with the likelihood of parole for convicted murderers dropping significantly. This has led to concerns about the law's retroactive application, particularly regarding prisoners sentenced before the law was passed. In the case of In re Vicks, the California Court of Appeal found that the risk of increased incarceration resulting from longer parole denials under Marsy's Law violated ex post facto principles when applied retroactively.
However, in the case of In re Russo, a different panel of the same court ruled that the ability of a prisoner who had been denied parole to petition to advance their next parole hearing protected Marsy's Law from an ex post facto challenge. This ruling suggests that while Marsy's Law may have an impact on parole decisions, it does not inherently violate ex post facto principles as it does not automatically increase incarceration rates.
The law has also faced criticism for restricting defendants' rights by allowing prosecutors to withhold exculpatory evidence and limiting discovery. This has raised concerns about due process and the potential for wrongful convictions. Additionally, the law's expansion of the definition of a victim and the range of crimes subject to victims' rights has been criticised as a one-size-fits-all approach that may not effectively serve the interests of all victims.
Overall, while Marsy's Law has been challenged on the basis of violating ex post facto principles, the specific impact and interpretation of the law vary across different states and court rulings. The law continues to face scrutiny and legal challenges, highlighting the complex and controversial nature of balancing the rights of victims and defendants in the criminal justice system.
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Does it restrict victims' rights?
Marsy's Law, passed in California in 2008, is a set of state constitutional amendments that aim to give crime victims important new legal rights. The law was proposed by the California non-profit corporation Marsy's Law: Justice for Crime Victims. It was passed by voters as Proposition 9 in the November 2008 general election, with 53.8% of the vote.
The law has been criticised for allegedly restricting the rights of defendants by allowing prosecutors to withhold exculpatory evidence and by restricting victims' rights to discovery, depositions, and interviews. The ACLU of Wisconsin has argued that the law "limits discovery available to defendants by allowing victims [to] refuse an interview, deposition, or other discovery request". The law has also been criticised for potentially conflicting with other constitutional provisions, such as Florida's Sunshine Amendment, which guarantees strong rights of public access to government records.
However, supporters of Marsy's Law argue that it gives victims a much-needed voice in the criminal justice system. The law seeks to give victims enforceable constitutional rights equal to those of the accused. These rights include being treated with dignity and respect throughout criminal justice proceedings, being notified of specific public proceedings, and being present and heard during those proceedings. The law also grants victims the right to be compensated for legal fees and to receive restitution from the convicted wrongdoer.
The impact of Marsy's Law on the parole process has been a subject of debate. While the law grants parole boards greater powers to deny inmates parole, studies have shown that it has led to an increase in the average length of time between parole hearings. The California Supreme Court is currently reviewing two cases that address whether the parole impact of Marsy's Law is unconstitutional.
In conclusion, while Marsy's Law has been criticised for allegedly restricting victims' rights to discovery and interviews, its overall purpose is to strengthen and expand the rights of victims in the criminal justice system. The law seeks to give victims a voice and ensure that they are treated with dignity and respect throughout the judicial process.
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Frequently asked questions
Marsy's Law is a law that seeks to give crime victims meaningful and enforceable constitutional rights equal to the rights of the accused.
Marsy's Law gives victims the right to be notified of their rights and specific public proceedings, to be present and heard during those proceedings, and to receive restitution. Victims are also given the right to participate in other aspects of the criminal justice process, such as conferring with prosecutors on the charges filed.
Critics argue that Marsy's Law unconstitutionally restricts the rights of defendants by allowing victims to refuse interviews, depositions, or other discovery requests. It is also criticised for potentially harming victims by restricting their rights to discovery, depositions, and interviews. In addition, there are concerns that Marsy's Law may conflict with existing constitutional provisions, such as the Sunshine Amendment in Florida, which guarantees strong rights of public access to government records.
As of May 2025, 12 states have adopted Marsy's Law, including California, Florida, Georgia, Illinois, Kentucky, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Dakota, and Wisconsin. However, courts in some states, such as Montana and Pennsylvania, have overturned the ballot measures.
