Montana voters are being asked to amend the state constitution to spell out specific rights for crime victims. Supporters of Constitutional Initiative 116 – or Marsy’s Law – say that’s important.
Chuck Denowh is state director of Marsy’s Law of Montana.
Denowh says people accused of even the most heinous crimes rightly have important rights, including the right to an attorney, due process and a speedy trial.
"But victims in Montana don’t have those same types of constitutional rights afforded to them," Denowh says. "That’s what Marsy’s Law is about – to take some of the rights that already exist at the statutory level and elevate them up to the constitution so that victims have rights that are on the same level as people who are accused or convicted of crime."
Denowh says those rights include victims being notified of major developments in criminal cases, when an offender’s jail or prison status changes, and to be present at all court proceedings.
But opponent Brad Tschida, a Republican state representative, says CI-116 is ultimately a solution in search of a problem.
"Marsy’s Law is not filling a void," Tschida says. "Marsy’s Law is actually an attempt – and I think an erroneous attempt – to try to strengthen and codify some of those things that already exist. I think it’s a matter of duplication, but not improvement."
Opponents call CI-116 bloated and vague. Brad Tschida:
"Marsy’s Law expands the definition of a victim to include any person who suffers direct or threatened physical, psychological or financial harm as a result of the commission or attempted commission of a crime, including family members and other representatives of the victim. Those are very, very, nebulous terms that are going to be subject to potential lawsuits and clarifications."
Marsy’s Law state director Chuck Denowh says CI-116’s victim definition is intentionally broad.
"To cover those cases where a minor might be involved and can't legally represent themselves, or somebody who has developmental problems or dementia and can’t legally represent themselves. (That’s so) some responsible party can fill the role of the victim for notification purposes and some of the other things that Marsy’s Law provides," says Denowh.
Denowh refutes the argument that Marsy’s Law tips the scales of justice too far in favor of victims
"That’s what we’ve done over a long history for defendant rights — things evolve," he says. "We started with a mere 99 words for defendant rights, but over time, that has evolved into a robust set of rights for defendants. With Marsy’s Law, we wanted to start out with more specificity, but still allow the courts some latitude to fill in the gaps."
Maybe a little too much latitude, according to opponent Brad Tschida.
"District Judge Russell Fagg said that at least one provision of the law is unconstitutional. That provision guarantees victims the right to refuse an interview, a deposition or other discovery requests. That flies in the face of a fair, speedy and just trial for those accused of a crime," Tschida says.
"You know, that is probably the largest challenge," says Summer Stephan, chief deputy county attorney in San Diego County, California.
California voters passed Marsy’s Law in 2008. She says concerns it clashes with existing constitutional rights are mostly overblown.
"That’s why you have courts that are trained to resolve those sorts of conflicts to make sure that defendants’ constitutional rights are protected and guarded while attempting to also advance victims’ rights."
Stephan says adopting Marsy’s Law was the "humane and just thing to do for victims."
She says it replaced a hodgepodge of statutes that varied by community and failed to honor crime victims with their own set of decency and rights.
"Marsy’s Law was a game-changer in that its requirements became constitutional; thus it rose to the top of priorities," says Stephan.
That doesn’t reassure opponents like Brad Tschida.
"We need to look at how does it fit the circumstances of a state like Montana," Tschida says. "We have 1 million people, or a little over that in the entire state. You look at some of the smaller cities in California and they have over 1 million people in those particular communities. Their circumstances are different than ours."
Marsy's Law is named for Marsy Nicholas, who was stalked and murdered by an ex-boyfriend in 1983. Her brother, is Henry Nicholas, co-founder of the semiconductor company, Broadcom. He has bankrolled most of Montana’s $2.4 million CI-116 campaign.
As of early October, no ballot committee registered to oppose CI-116 and no money reported spent to fight it.
Chuck Denowh says Nicholas’ ultimate goal is to amend the U.S. Constitution with a crime victims' bill of rights.