Sen. Whitley Westerfield, R-Crofton, has again filed legislation to amend the Kentucky Constitution with a proposed amendment known as Marsy’s Law.
Westerfield has added a provision to this year’s proposed legislation that’s a clear attempt to play upon the unpopular and ill-advised pardons issued by former Gov. Bevin before he left office in December, and the fact that victims of those pardoned were not consulted or even notified by him or his office.
Certainly, the process of gubernatorial pardons needs to be addressed, as other bills do. But voters should not be distracted or confused. That’s not the primary issue in Westerfield’s attempt to get Marsy’s Law across the finish line.
The law is named for Marsalee “Marsy” Nicholas, a California woman who was stalked and killed in 1983 by her ex-boyfriend. Nicholas’ family members were later confronted by the accused murderer whom they were not told had been released on bail.
Westerfield in a Friday op-ed in the Courier Journal claims the Kentucky Supreme Court, which struck down previous passage of the law, “ignored more than a hundred years of established legal precedent.”
Actually, the Supreme Court unanimously ruled that the amendment, which passed on the 2018 ballot, was invalid because the ballot contained only a single question and didn’t adequate reflect all that voters should have known about the changes that would have been made in the constitution.
As the Courier Journal reported, the high court’s decision upheld an earlier ruling by Franklin Circuit Judge Thomas Wingate that “the ballot measure language was so vague and uninformative that the vote on it shouldn’t be certified, pending further review by higher courts.”
Wingate’s conclusion is an understatement if there ever was one.
Compare this single sentence which appeared on the November 2018 ballot:
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?
with all that would have been added to the Kentucky Constitution had the vote been allowed to stand:
To secure for victims of criminal acts or public offenses justice and due process and to ensure crime victims a meaningful role throughout the criminal and juvenile justice systems, a victim, as defined by law which takes effect upon the enactment of this section and which may be expanded by the General Assembly, shall have the following rights, which shall be respected and protected by law in a manner no less vigorous than the protections afforded to the accused in the criminal and juvenile justice systems: victims shall have the reasonable right, upon request, to timely notice of all proceedings and 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; the right to be present at the trial and all other proceedings, other than grand jury proceedings, on the same basis as the accused; the right to proceedings free from unreasonable delay; the right to consult with the attorney for the Commonwealth or the attorney’s designee; the right to reasonable protection from the accused and those acting on behalf of the accused throughout the criminal and juvenile justice process; the right to timely notice, upon request, of release or escape of the accused; the right to have the safety of the victim and the victim’s family considered in setting bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction; the right to full restitution to be paid by the convicted or adjudicated party in a manner to be determined by the court, except that in the case of a juvenile offender the court shall determine the amount and manner of paying the restitution taking into consideration the best interests of the juvenile offender and the victim; the right to fairness and due consideration of the crime victim’s safety, dignity, and privacy; and the right to be informed of these enumerated rights, and shall have standing to assert these rights. The victim, the victim’s attorney or other lawful representative, or the attorney for the Commonwealth upon request of the victim may seek enforcement of the rights enumerated in this section and any other right afforded to the victim by law in any trial or appellate court with jurisdiction over the case. The court shall act promptly on such a request and afford a remedy for the violation of any right. Nothing in this section shall afford the victim party status, or be construed as altering the presumption of innocence in the criminal justice system. The accused shall not have standing to assert the rights of a victim. Nothing in this section shall be construed to alter the powers, duties, and responsibilities of the prosecuting attorney. Nothing in this section or any law enacted under this section creates a cause of action for compensation, attorney’s fees, or damages against the Commonwealth, a county, city, municipal corporation, or other political subdivision of the Commonwealth, an officer, employee, or agent of the Commonwealth, a county, city, municipal corporation, or any political subdivision of the Commonwealth, or an officer or employee of the court. Nothing in this section or any law enacted under this section shall be construed as creating:
(1) A basis for vacating a conviction; or
(2) A ground for any relief requested by the defendant.
“Our constitution is too important and valuable to be amended without the full amendment ever being put to the public,” Chief Justice John Minton Jr. wrote for the court. Changing it “requires a meaningful, thoughtful opportunity for the voters to know what they are voting on.”
Westerfield, who chairs the Senate Judiciary Committee, also claims in his editorial that “victims were once again left behind by the very system put in place to protect them.”
However, Sen. John Schickel, R-Union, also a Judiciary Committee member, argued against that notion in a Bluegrass Institute op-ed.
“Kentucky has some of the best laws in the nation to keep crime victims informed,” writes Schickel, a former U.S. Marshal and local law enforcement officer.
Schickel acknowledges that Westerfield is well-intentioned and that Kentucky should improve existing statutes, but adds: “amending the constitution toward this end and others could create many far-reaching consequences undermining our form of government and justice system.”
He also notes that Westerfield’s bill is based on a California law which attempts to fix what’s not broken in Kentucky.
“The commonwealth already has the Kentucky Crime Victim Bill of Rights codified in KRS 421.500 to .576,” Schickel writes. “Under Kentucky’s existing law, Marsy’s family would have been notified before the individual was released from jail.”
The Courier Journal reported on the wide array of opposition to the measure from both prosecutors and defense attorneys:
But the Kentucky Association for Criminal Defense Lawyers, which challenged it, said it would “turn the presumption of innocence inside out” because it requires a judge to designate someone a victim before there is a finding that a crime occurred or that the accused committed it.
David Ward, its immediate past president, said in an email that he was pleased with the decision.
“Voters have a right to know what they are voting on and the legislature failed to tell them,” he said.
A wide array of interest groups warned that Marsy’s Law would produce unintended consequences in Kentucky.
Hardin Commonwealth’s Attorney Shane Young, for example, called it “feel good legislation” that would add to court delays by giving victims — and their attorneys — official standing to speak in court.
The Kentucky Coalition of Domestic Violence refused to endorse it, saying victims are often charged as defendants when they fight back against their assailant and that abusers would be able to exploit the expanded protections to continue their harassment.