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Voters To Weigh In On Marsy’s Law While Its Fate Remains In Limbo

A women hold a photo poster of Marsy Nicholas, which the Marsy Law was named after, during the Orange County Victims' Rights March and Rally, Friday, April 26, 2013, in Santa Ana, Calif.
Bret Hartman
A women hold a photo poster of Marsy Nicholas, which the Marsy Law was named after, during the Orange County Victims' Rights March and Rally, Friday, April 26, 2013, in Santa Ana, Calif.

90.5 WESA's An-Li Herring explores the debate over Marsy's Law, which will appear on the Nov. 5 ballot.

When Pennsylvanians go to the polls next Tuesday, they’ll be asked to vote on a victims’ rights amendment to the state constitution. But a Commonwealth Court judge has barred state elections officials from counting votes on the measure, called Marsy’s Law – at least for now.

The votes might count some day, however, if the judge’s decision is reversed. That's why amendment supporters and critics alike want voters to take the question seriously next week.

Stephanie Fox, operations manager at Pittsburgh’s Center for Victims, is campaigning for Marsy’s Law because, she said, it will ensure better treatment for victims in the criminal justice system.

Stephanie Fox, of Pittsburgh's Center for Victims, is a local representative of the Marsy's Law for Pennsylvania campaign.
Stephanie Fox, of Pittsburgh's Center for Victims, is a local representative of the Marsy's Law for Pennsylvania campaign.

Fox herself survived 10 years of domestic abuse.

“He tried to kill me,” she remembered. “I was strangled. I was choked. My children were there. They saw this all.”

Fox said that as her abuser went in and out of jail, her experience with the court system made it harder to cope with the trauma of her abuse.

She wanted judges to hear from her, not just from prosecutors and police reports. But she wasn’t always informed of court dates. And when she was in court, she wasn’t always allowed to speak.

Marsy’s Law would amend the state constitution to give rights to crime victims for things like notification of court proceedings and parole hearings, as well as the chance to make statements during court proceedings.

A victim is entitled to such consideration, Fox said, “because that victim has to live with [the impact of crime] forever … They’re the innocent first: A victim’s always innocent.”

‘What’s a judge to do?’

But critics of Marsy’s Law note that people accused of crimes are sometimes innocent, too. And they point out that it’s not clear how common Fox’s experience is.

Between 2014 and 2018, an average of fewer than 20 crime victims filed complaints about their treatment with the state, according to data from Pennsylvania’s Office of Victim Advocate. During that period, the number of victims registered statewide rose from about 35,000 to about 41,000.

Republican state Rep. Paul Schemel, of Franklin County, worries that, if Marsy’s Law goes into effect, judges will struggle to respect both victims’ and defendants’ rights, such as the right to a speedy trial.

“What does that mean when the victim says, ‘Well, I want this proceeding to go slower?' And the defendant says, ‘I want this proceeding to go faster?'” Schemel asked. “What’s a judge to do in that situation, because now you have two competing constitutional rights?”

The prime sponsor of Marsy’s Law in the state House, Cumberland County Republican Sheryl Delozier, says she's confident that judges could balance victims and defendants’ rights.

“We elect individuals [to be judge] that have the integrity and the knowledge to be able to make that decision in a case,” Delozier said.

Legislators voted overwhelmingly to put Marsy’s Law on the ballot. But Schemel, who originally supported the measure before changing his mind, said some of his colleagues had misgivings.

“They’ll say, ‘I agree with you, Paul, but I just, I don’t want to be voting for something that looks to people like I’m voting against victims,'” the lawmaker said.

Liz Randol, legislative director for the American Civil Liberties Union of Pennsylvania, agrees that victims deserve rights in the justice system. But, she noted that Pennsylvania’s Crime Victims Act already contains “the vast majority of the protections that are outlined in Marsy’s Law.”

The amendment’s supporters argue that victims cannot enforce those rights unless they’re added to the state constitution. But Randol said that document is meant to regulate the relationship between the government and the accused, who stand to lose their freedom or even their life following prosecution.

“[Defendants] are especially vulnerable to the power of the state,” Randol said. “And so, the reason why we have such robust protections for the accused is because it limits the ability of the state to run around and pick people up without probable cause, to incarcerate them without any evidence.”

And Schemel added, “A criminal proceeding is not between a victim and a defendant. ... A criminal proceeding is between the state and the defendant.”

Victims who want further recourse, the legislator said, could bring a civil suit against a defendant.

‘The vote is going forward’

The campaign for the amendment is bankrolled by billionaire Henry Nicholas, whose sister was murdered in 1983. Campaign records show that his California-based foundation has spent at least $6 million on outreach that includes TV and digital ads.

Jennifer Riley directs the Marsy’s Law campaign in Pennsylvania. She noted that over 30 states already have protections for victims in their constitutions. And she said critics’ fears haven’t played out in any of those states.

“It just simply doesn’t happen,” Riley said. “So although I respect their argument hypothetically and in theory, in practice it’s just not a concern.”

An inmate in California, where Marsy’s Law was approved in 2008, argued in a 2009 lawsuit that the amendment lengthened the time between parole hearings, and therefore prolonged prison sentences. That state's Marsy's Law did make parole hearings far less frequent, though it also said the parole board could waive the longer waiting period. And in a unanimous decision, the California Supreme Court said there was no evidence that the inmate would have been released any earlier if Marsy's Law hadn't been passed.

In any event, the Marsy’s Law campaign has won over voters in 12 states. But courts in two states later struck the measure down because the changes were too broad and the ballot language was too narrow.

The ACLU filed a similar lawsuit in Pennsylvania. And on Wednesday, Commonwealth Court Judge Ellen Ceisler agreed that giving more rights to victims could jeopardize the rights of the accused.

Ceisler blocked the state from compiling or certifying a final vote count next week. But the question will still be on the ballot, and those votes could be counted if Ceisler’s decision is reversed.

That’s why the ACLU of Pennsylvania’s deputy legal director, Mary Catherine Roper, said voters should take the question seriously.

“I don’t see any reason to think people would not vote on something they care about just because it’s in litigation,” Roper said. “Go out and vote … The vote is going forward.”

If Marsy’s Law is approved by voters and the courts but skeptics’ fears come true, the language could be changed. But that would require an entirely new amendment.

Copyright 2019 90.5 WESA

An-Li became a reporter while completing her law degree at Stanford. In law school, she wrote about housing affordability, criminal justice and economic development, among other topics. She also served as the intern to NPR Legal Affairs Correspondent Nina Totenberg in Washington, DC, helping Ms. Totenberg to cover the U.S. Supreme Court and other legal matters. Originally from Pittsburgh, An-Li interned with the investigations team at the Pittsburgh Post-Gazette before joining WESA in August 2017.