A victims’ rights constitutional amendment Floridians will vote on this fall that sounds like a good idea on the surface is actually a bad idea that clutters up the state’s constitution and could violate the rights of defendants, according to opponents.
On the ballot in November, bundled confusingly with questions about the judicial retirement age and the power of administrative law judges, is a victims’ rights measure called Marsy’s Law.
The initiative was conceived and has been pushed nationwide by California tech billionaire Henry Nicholas, after his sister, Marsalee “Marsy” Nicholas, was stalked and killed by her ex-boyfriend in 1983.
Family members of Marsy Nicholas, who had not been notified that the man accused of killing her was out on bail, ran into the man at a grocery store just a week after her death. Clearly defined victims’ rights could have avoided their trauma, advocates for Marsy’s Law argue.
Florida’s proposed Marsy’s Law, approved by the Constitutional Revision Commission this month, presents voters the opportunity to change the state’s charter document to include victims’ rights, such as the right to be notified of all criminal proceedings, the right to confer with the prosecutor before a plea agreement is offered, and the right to discuss matters of criminal restitution.
State Attorneys, with the counsel of alleged victims, could also demand a speedy trial regardless of a defendant’s wishes, and the provision would limit the time allowed for appeals.
Indian River County Commissioner Bob Solari, one of three members of the Constitutional Revision Commission to vote against Marsy’s Law in March, and Vero Beach Attorney Andrew Metcalf, a past president of the county bar association, say the amendment is a bad idea.
Changes to the state constitution should be made sparingly and directly related to helping shape government, said Solari, one of 37 people selected for the commission which proposes state constitutional changes every 20 years.
The committee’s recommendations go directly to the ballot – no chance of gubernatorial veto, congressional override or judicial review.
The state legislature has already addressed victims’ rights and there is no need for a constitutional amendment, said Solari. Such policies are better made as laws by the legislature, he added.
“What we’re doing [with constitutional amendments] is calcifying government. You just make the whole constitution so rigid and inflexible that government becomes rigid and inflexible, and I think that leads to bad governance over time.”
The process was also highly political, Solari added. Advocates for Marsy’s Law held press conferences outside committee meetings.
“It is certainly my belief this is going to lead to multiple lawsuits down the pike further clogging the judicial system which is going to hurt everyone,” he said.
Metcalf said places like South Dakota that have Marsy’s Law on the books are struggling to pay for it and are trying to pass repeals.
Groups like the American Civil Liberties Union also oppose Marsy’s Law, arguing such measures present federal constitutional challenges, such as the right to a fair trial and the right to confront an accuser.
What happened to the Nicholas family is tragic, but the system is set up to protect the presumption of innocence, Metcalf said.
A defendant’s life and liberty are at stake. The burden of proof must fall on prosecution beyond a reasonable doubt.
He further noted, there is no legal victim until a jury finds a defendant guilty or a plea deal is made. Family members “are accusers . . . not victims,” until a case is settled in court, Metcalf said. “No matter what we know, or what we think, or what we read in the paper, we have to wait for the process. That’s what [this country] believes in.”
A California billionaire should have no say in what goes in Florida’s constitution, Metcalf added.
“It’s pure politics. It’s unfunded and it doesn’t do what it purports to do.”
Bruce Colton, State Attorney for the 19th Judicial District, agrees that victims’ rights are already extensively covered by Florida law.
But he disputed Metcalf’s argument that the scales of the justice system will be tipped if victims are given additional leverage. He said higher courts have ruled that a victim’s demand for a speedy trial must take a back seat to a defendant’s needs.
“The victims have input, not the final say,” Colton said.
“We always try to comply with victims’ wishes when we can,” the prosecutor said. “[A Marsy’s Law amendment] won’t hurt anything. It will likely improve things in some ways.”