top of page




‘Clear and convincing’ missing from proposed amendments on Kentucky's ballot

Former Nebraska Democratic Sen. Ben Nelson once spoke of amending the U.S. Constitution as “a delicate endeavor and should be done only on the basis of the most clear and convincing evidence that a proposed amendment is necessary.”

Neither “clear” nor “convincing” describes the first amendment known as “Marsy’s Law” on this year’s Kentucky ballot – named after Marsalee “Marsy” Nicholas, a California woman stalked and killed by her ex-boyfriend who later confronted Nicholas’ family members who were unaware he’d been released on bail.California groups are spending wads of cash with Kentucky lobbyists to force the Bluegrass State to change its Constitution.

Unsurprisingly, what’s broken in California is doing just fine in Kentucky, which already has some of the nation’s strongest victims-rights’ laws ensuring families in similar situations as Nicholas’ loved ones are notified before defendants are released.

The proposed amendment also potentially erodes important tenets of American jurisprudence.

For example, the Constitution would change to remove suspects’ innocent-until-proven-guilty assumption by giving victims the right to dodge discovery requests and withhold exculpatory evidence which unintentionally thwarts justice by allowing guilty defendants to get their cases overturned on appeal.

Marsy’s Law has been implemented in only six states, some of which already have experienced serious disruption in their justice systems.

South Dakota voters misled into passing a version of Marsy’s Law in 2016 went back and overwhelmingly amended the Constitution again in the 2018 election after realizing their earlier action greatly hindered criminal prosecutions.

Do we really want that kind of a mess in the commonwealth?

On the other hand, 35 states, including Kentucky, protect crime-victims’ rights without the false equivalency of Marsy’s Law.

The other amendment on this year’s ballot also bundles a proposed change for which a “clear and convincing case” may be made – increasing from two to eight the number of years attorneys must practice law before being eligible to serve as district judges – with an unsettling plan to expand prosecutors’ terms in office from six to eight years and double those of district judges’ to eight years, making them the same as their circuit-court counterparts.

Supporters claim having the same term lengths will ultimately allow improved efficiencies in the judicial system.

Opponents agree with the need for more efficiency but point to recent cases of judicial and prosecutorial misconduct to support shortening shorten circuit court judges’ and prosecutors’ terms to four years, thus allowing voters to more frequently hold both judges and prosecutors accountable at the ballot box.

Speaking of judges, while debates about limiting the terms of Supreme Court justices have grown louder in recent years, the focus presently is on Seventh Circuit Judge Amy Coney Barrett, President Trump’s latest and most-impressive nominee to the high court. Barrett’s nomination offers good news for school-choice supporters throughout the country where cases empowering parents with educational opportunities for their children are winding their way toward the Anótato Dikastírio.Recently, the Tennessee Court of Appeals struck down an Education Savings Account (ESA) program allowing families to redirect some of the billions of tax dollars intended to educate away from failing or mediocre public schools toward private-school tuition and other needed services.

The court ruled against the program because, strangely, it only applied to two counties – a reminder that anti-school choice ideologues will stop at nothing to deny parents their educational liberty.

School-choice supporters must be equally determined, especially in Kentucky which just received an “F” for its lack of options in the nationally acclaimed Center for Education Reform’s Parent Power! Index.

Judge Barrett once asked: “What greater thing can you do than raise children? That’s where you have your greatest impact on the world.”

Presumably, such “impact” includes being empowered as a parent to decide where and how your children are educated.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Reach him at and @bipps on Twitter.

More Articles: 

bottom of page