Proposed KY Constitutional Amendment

Everyone in Kentucky will vote on the proposed Constitutional amendment.

NOTE: JUDGE BARS CERTIFICATION OF VOTES

On October 15, Franklin Circuit Judge Thomas Wingate ruled that the ballot question’s wording failed to sufficiently inform Kentuckians what they were voting on. 

Election officials are not to certify the results of the upcoming vote on whether to change the state’s constitution unless a higher court decides otherwise.

The Kentucky Association of Criminal Defense Lawyers (KACDL) had filed the legal challenge alleging that the ballot question was “insultingly vague and grossly misleading.”

BALLOT QUESTION

“Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?”

Marsy’s Law: In a Nutshell…

(As stated in The Louisville Forum’s August 12, 2018 debate on Marsy’s Law)

Intro

Marsy’s Law—would it balance or tip the scales of justice?

The question on the ballot this November is: “Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly with dignity and respect and the right to be informed and have a voice in the judicial process?” The referendum, as written, would amend the Kentucky Constitution.

The proposed law is named for Marceline Nicholas, a young woman who was killed by an ex-boyfriend. That ex-boyfriend was then out on bail when Marcy’s mother and brother encountered him in a grocery store. They had not been notified of his release. That brother, Henry Nicholas, became a billionaire and he is the prime source of funding behind Marsy’s Law campaign. Since 2008, a national campaign entitled Marsy’s Law has sought to enshrine in state constitutions in the United States a specific and lengthy set of victims’ rights.

Context

Kentucky is one of 15 states that makes no mention of victims’ rights; the right to be notified of the release of a victim’s assailant, for example, in its constitution. 35 states include some version of victims’ rights and their constitutions, but only five states (California, Illinois, Ohio, North Dakota, and South Dakota) currently do so using Marsy’s Law.

Georgia, Kentucky, Nevada, North Carolina, and Oklahoma all have this question on their ballot this year, in 2018. Measures in 24 state legislatures have been made to adopt it. It has been overturned in Montana, following a ballot measure, and a measure was introduced in South Dakota Legislature to repeal part or all of the amendment.

It should be noted that, in 1986, the Kentucky State Legislature passed legislation addressing the rights of all crime victims. That legislation, which includes KRS chapters 421.500-421.575 is also known as the Kentucky Crime Victim Bill of Rights. As of 2018, that has been amended multiple times including in 1996, 1998, 2000, 2006, 2008, and 2013.

Proponents

The law’s proponents say they want equal rights for crime victims and they argue that the constitutional rights of the accused outweigh the rights afforded crime victims under state law when the two clash. For instance, Marsy’s Law includes a constitutional right to privacy for victims, a right to participate in the proceedings, and to protection from the accused if needed.

Opponents

Opponents, such as the [Kentucky Association of Criminal Defense Lawyers] KACDL and the [American Civil Liberties Union] ACLU argue that Marsy’s Law may be unconstitutional and that existing statutes already ensure victims’ rights.

Proponents and Opponents… In Their Own Words

Note: This is not meant to be an exhaustive list of proponents and opponents, nor every pro and con. Rather, it is a starting place to understand some of the basic arguments on both sides of the issue.

Proponent: Marsy’s Law For Kentucky

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The Problem

Kentucky is one of only sixteen states that does not provide constitutional protections for crime victims. While the accused and convicted have numerous rights codified in the Kentucky Constitution, crime victims only have statutory protections. This creates an imbalance of justice. For victims already facing tragic loss and/or physical or emotional trauma, the navigation of a complex legal system that does not protect them with the same ferocity that it does the accused and convicted often feels re-victimizing.

The Solution

By implementing Marsy’s Law into the Kentucky Constitution, crime victims will have an equivalent level of legal protection as those who are accused and convicted and standing to enforce these rights, if violated.

Constitutional Rights for Victims of Crime
  1. Reasonable right, upon request, to timely notice of all proceedings.
  2. Right to be heard in any proceeding involving a release, plea, sentencing, or other matter involving the right of a victim other than grand jury proceedings.
  3. Right to be present at the trial and all other proceedings, other than grand jury proceedings, on the same basis as
    the accused.
  4. Right to proceedings free from unreasonable delay.
  5. Right to consult with the attorney for the Commonwealth or the attorney’s designee.
  6. Right to reasonable protection from the accused and those acting on behalf of the accused throughout the criminal and juvenile justice process.
  7. Right to timely notice, upon request, of the release or escape of the accused.
  8. Right to have the safety of the victim considered in setting bail, determining whether to release the defendant and setting conditions of release after arrest and conviction.
  9. Right to full restitution to be paid by the convicted or adjudicated party in a manner to be determined by the court.
  10. Right to fairness and due consideration of the crime victim’s safety, dignity and privacy.
  11. Right to be informed of these enumerated rights.
  12. Standing to assert these rights.
What Marsy’s Law Does Not Do
  • Does NOT guarantee outcomes.
  • Does NOT infringe upon the numerous rights afforded to the accused and convicted.
  • Does NOT interfere with prosecutorial discretion.
  • Does NOT add a burden to the system.

Opponent: American Civil Liberties Union (ACLU)

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We Oppose Because...

We oppose Marsy’s Law because it unnecessarily complicates the criminal justice process, threatens to increase prison populations, interfere with due process, and clog our justice system.

Takes a Real Investment... Not What Marsy's Law Does

“Survivors and victims of crime, it’s true, are often not treated with the respect and dignity to which they are entitled … however, expanding services for those individuals takes a real investment. That is not what Marsy’s Law does.”
-Kentucky ACLU Attorney Heather Gatnarek (January 4, 2018 WFPL story)

Opponent: Kentucky Association of Criminal Defense Lawyers (KACDL)

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Legal Challenge

The KACDL lawsuit reveals two fatal flaws to the “Marsy’s Law” amendment. First, the proposed amendment would significantly change the criminal justice system. Second, the amendment is to be presented to the voters in a confusing manner that fails to inform the voting public how that change would take place. The electorate deserves a fair chance to know what they are voting for and to hold the legislature to its obligations under Section 256 of our Kentucky Constitution. The ballot question is both insultingly vague and grossly misleading. Placing such a proposal on the ballot violates the Kentucky Constitution and is a disservice to the people of our Commonwealth.

Read entire August 13, 2018 press release here.

Shortcomings of Marsy's Law

No one opposes providing redress to crime victims. However, Marsy’s Law is a radical proposal that is rife with potential conflicts and innumerable problems that do not serve the interests of justice for all. Our state constitution has served us well – let’s not tamper with it when there is no legitimate reason to do so.

  • Marsy’s Law is a solution without a problem.
  • Kentucky already has significant provisions to ensure victims have rights in court.
  • A constitutional amendment is the wrong mechanism for changing the law.
  • There are unintended consequences to this proposal.
  • Often, the entire point of a trial is to determine who the perpetrator is and who the victim is.
  • This proposal is damaging to the office of prosecutor.
  • This proposal would alter significantly the adversary system as we know it.

Read an explanation of each alleged shortcoming here.

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