Marsy’s Law Is on the Ballot; Voters Will Decide Whether it Goes on the Books

There will be six constitutional a­­­mendments on the ballot this November. One of them, S.L. 2018-110 (H 551), expands the constitutional rights of crime victims. Voters will be asked to vote for or against a “Constitutional amendment to strengthen protections for victims of crime; to establish certain absolute basic rights for crimes; and to ensure the enforcement of these rights.” If House Bill 3, ratified yesterday, becomes law no additional explanation of the amendment will appear on the ballot, though the Constitutional Amendments Publication Commission will prepare an explanation of the amendment at least 75 days before the election. If you just can’t wait that long to learn more about the amendment and its effect on existing law, this post is for you. 

The law as it stands. ­­­North Carolina’s constitution already provides certain rights to crime victims. In 1996, voters approved the addition of “Section 37. Rights of victims of crime” to Article I of the North Carolina Constitution. That section enumerates several “basic rights” for victims of crimes, leaving it to legislators to prescribe by statute the types of victims and crimes covered. Notwithstanding these provisions, North Carolina is one of several states in which the advocacy group Marsy’s Law for All has advocated for constitutional change.

What is Marsy’s Law? Marsy’s Law is the colloquial name for the Victim’s Bill of Rights that was added to the California state constitution in 2008 and for similar amendments proposed and enacted to other state constitutions. The California amendment was backed by Henry Nicholas, the co-founder of Broadcom Corp., whose sister, Marsy Nicholas, was killed by her ex-boyfriend in 1983. Henry Nicholas and his mother reportedly encountered the ex-boyfriend in the grocery store a week after the murder. To their surprise, he had been released on bail. In 2009, Henry Nicholas founded Marsy’s Law for All.

Didn’t I read about this last year? You may have. In April 2017, the House passed an earlier version of House Bill 551, which I summarized here. The bill was referred to the Senate Judiciary Committee, where it was replaced by a committee substitute. Both chambers ratified that version, which differs significantly from the earlier one, in June 2018.

The proposed amendment. The amendment changes Article 1, Section 37 of the constitution to define as part of that section the types of victims and crimes covered. It also extends victim’s rights to victims of specified acts of delinquency. The amended constitutional protections apply to victims of crime or acts of delinquency when the crime or act of delinquency is against or involving the person or is equivalent to a felony property crime.

Under the amendment, a victim has the following rights:

• The right upon request to reasonable, accurate, and timely notice of court proceedings of the accused;
• The right upon request to be present at court proceedings of the accused;
• The right to be reasonably heard at any court proceeding involving the plea, conviction, adjudication, sentencing, or release of the accused;
• The right to receive restitution in a reasonably timely manner when ordered by the court;
• The right to be given information about the crime or act of delinquency, how the criminal justice system works, the rights of victims, and the availability of services for victims;
• The right upon request to receive information about the conviction, adjudication, or final disposition and sentence of the accused;
• The right upon request to receive notification of escape, release, proposed parole or pardon of the accused, or notice of a reprieve or commutation of the accused’s sentence;
• The right to present the victim’s views and concerns to the Governor or agency considering any action that could result in the release of the accused, prior to such action becoming effective; and
• The right to reasonably confer with the prosecution.

These rights generally are afforded under the current constitution, but are amended to encompass juvenile delinquency proceedings and to make other modifications. For example, the constitution now provides that a victim has the right to be reasonably heard at sentencing of the accused “in a manner prescribed by law, and at other times as prescribed by law or deemed appropriate by the court.” Under the amendment, a victim has a constitutional right “to be reasonably heard at any court proceeding involving the plea, conviction, adjudication, sentencing, or release of the accused.”

Enforcement. The amendment adds a new enforcement provision to the constitution. Proposed Article 1, Section 37(1b) states that the victim (or a family member, guardian, or legal custodian if the victim is a minor, is legally incapacitated, or is deceased) may assert the victim’s rights. The General Assembly is authorized to adopt a procedure for a victim to assert the victim’s constitutional rights, which must be by motion to the court in the underlying criminal or juvenile proceeding. The victim may be represented by counsel at such a proceeding, but does not have a right to appointed counsel.

In addition, Article 1, Section 37(2), which currently states that Section 37 does not create a claim for money damages against the State, a county, a municipality, or any of the agencies, instrumentalities or employees thereof, is amended to specify that its provisions may not be construed as creating a claim for money damages or “any cause of action” against the State, local governments, or their agencies, instrumentalities, officers or employees.

Not a ground for relief in the criminal case. Amended Article 1, Section 37(3) states that the section may not be construed to provide grounds for a victim (i) to appeal any decision made in a criminal or juvenile proceeding, (ii) challenge any verdict, sentence, or adjudication, or (iii) participate as a party in any proceeding; or (iv) obtain confidential juvenile records.

Limiting language. The amendment specifies that nothing in Section 37 may be construed to restrict the power of the district attorney or the inherent authority of the court. It also authorizes the General Assembly to prescribe general laws to further define and implement the section.

In general, the proposed amendment is significantly narrower than the version that passed the House in 2017. It does not include the new constitutional rights listed in the earlier version, which included the right to be reasonably protected from the defendant and the right to proceedings free from unreasonable delay.

Effective date. If a majority of the votes cast are in favor of the amendment, it becomes effective August 31, 2019.