New Report from Nation’s Criminal Defense Bar Outlines How Marsy's Law Undermines the Criminal Legal System – Washington, DC (August 13, 2024)

Washington, DC (August 13, 2024)– A new report from the National Association of Criminal Defense Lawyers (NACDL) outlines the ways in which Marsy’s Law, the colloquial name for a model Victims’ Bill of Rights, undermines fundamental due process rights. First passed in California in 2008 and now adopted in 12 states, Marsy’s Law enshrines victims’ rights within state constitutions. At a fundamental level, the law has subverted the role of the criminal legal system and conflated prosecutors’ responsibility to the State with an untenable responsibility to individual victims. Marsy’s Law expands the definition of a victim and the scope of victimhood, and its provisions include the right to notification, the right to be heard, the right to privacy, and the right to restitution. The report, authored by Professor Ráchael Powers and Jacquelyn Burckley, finds that, among other impacts, these provisions waste valuable system resources, delay proceedings and interfere with appropriate case disposition, reduce access to critical discovery and testimony, limit police accountability, and create untenable restitution conditions for defendants.

Key findings include:

• Rights attach "at the point of victimization," implying an accused person, who should be presumed innocent until proven guilty, is now presumed guilty.
• The vagueness and broadness of the definition of victim has led to police and municipalities claiming victimhood.
• Marsy’s Law prioritizes speedy outcomes and convictions over the administration of justice.
• The right of a victim to refuse disclosure of relevant documents and pre-trial interviews hampers the ability of defense attorneys to investigate.
• A defendant’s financial situation is no longer considered in restitution, creating financial burdens that increase collateral consequences.
• The expansion of who is considered a victim, the requirements to notify the victim of all proceedings, and the right of the victim to be heard and confer with the prosecution has overburdened local criminal legal systems.
• The costs of implementation come at the expense of resources that could be allocated towards community-based crime prevention initiatives. These costs do not come with parallel benefits to public safety.

"Marsy’s Law undermines the foundation of our criminal legal system, exacerbates inequalities in criminal justice processes, and is at odds with many criminal legal system reforms that the majority of Americans support," said report co-author Ráchael Powers. "The answer to how best serve victims is not Marsy’s Law. To address and prevent victimization, we should engage in community-centered efforts that repair the relationship between citizens and the criminal legal system and invest in communities’ capacity to build safe and healthy neighborhoods."

"While victims deserve to be treated with compassion and dignity, Marsy’s Law puts the needs of victims above those of the accused, limiting the constitutional mandate of a robust defense, upending the notion of innocent unless proven guilty, and prioritizing victims’ desired case outcomes over true justice," said NACDL President Christopher Wellborn. "Putting retribution over accuracy harms communities, decreases public safety, and reduces resources for the victims the law purports to help."

"Marsy’s Law is fundamentally incompatible with constitutional principles of fairness," said NACDL Executive Director Lisa Wayne. "Our system affords individuals charged with crimes constitutional protections against the power of the government. Measures which erode these protections impact every facet of our criminal legal system, leading to increased use of pretrial detention, lack of confidentiality for juvenile defendants, more collateral consequences associated with convictions, limited parole opportunities, and wrongful convictions. They mire states in administrative bureaucracy, delaying trials, imposing financial burdens, and wasting taxpayer dollars. We therefore call on the public and elected officials to oppose Marsy’s Law."

Read the report: nacdl.org/justicefornone

Contacts

Jessie Diamond, Deputy Director, Public Affairs and Communications, (202) 465-7647 or jdiamond@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.