Ladd Erickson: Marsy's Law Diminishes Some Protections For Victims

Political tacticians, I need your help on something.

I am one of the state’s attorney’s from across our state that will be opposing the measure known as “Marsy’s Law” this summer. To date, the campaign in support of that measure has been very predictable. But then last week the measure’s supporters filed their petitions with the North Dakota Secretary of State’s Office two months before they were due.

Why would they do that? I haven’t been able to figure it out and have hope someone can clue me in by commenting on this post.

What’s confusing to me is that as long as you are paying for signatures, and have what is in effect a private billionaire California guy funding you, why not pay for two more months of signatures so you can make it appear like you have that much more support for your measure?

I don’t get it?

Another reason their early petition filing puzzles me is if you analyze all of the messages being put forth in support of Marsy’s Law you see that the transparent strategy is to avoid policy advocacy in lieu of targeting voter emotions. For example, if you go to YouTube and watch the Marsy’s Law video clips from whatever state they come up, the clips are all the same.

Same scripts, just with different names. Same background music and settings, same tones and non-verbal postures to evoke emotions in the viewers, etc. Professional well-funded public relation clips for sure, but all just targeted at voter emotions – no policy, no specifics, and no explanation of what victim rights states like North Dakota already have and how they are working.

You can glean the same voter emotion targeting by reviewing the Marsy’s Law website and Facebook pages from different states: North Dakota; South Dakota; Montana; Hawaii; Nevada.

Again, it’s all the same professionally crafted emotional hooks put out through social media.

One of the concerns people like me have with how Marsy’s Law came about in our state, and how it’s being sold to the public, is the complete lack of proper civics in the process. More time, public comment periods, and hearings are held when municipal barking dog ordinances are made into law than in all of the twenty-three new provisions and paragraphs Marsy’s Law seeks to place in our state constitution.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]More time, public comment periods, and hearings are held when municipal barking dog ordinances are made into law than in all of the twenty-three new provisions and paragraphs Marsy’s Law seeks to place in our State Constitution.[/mks_pullquote]

At least with dog ordinances, there is some process.

With Marsy’s law, the concepts were developed in California, not brought before a North Dakota committee for public scrutiny or comment about the language, and are now being sold exclusively by emotion amped up by the funding from a guy who wants his sister’s name enshrined in our state law.

Marsy’s Law supporters frequently claim that they worked with some North Dakota attorneys and law enforcement officers in tweaking the California Marsy’s Law provisions for our state. Maybe so, but that’s not a civics. Civics come after you have war-gamed things in your camp, and then brought your draft to public hearings for review or rebuke.

How many well intended bills make it through legislative hearings and into law untouched by amendments after people see intended or unintended consequences of the bill’s specific language? Darn few. The Marsy’s Law language skipped this important policy making process, and that fact glares out at you when you study the language. What the voters will be voting on in November for placement in our Constitution is akin to first bill draft language that needs a lot of work.

Civics aside, the most concerning things about Marsy’s Law relate to its policy specifics. After all, we don’t put emotions or heart-wrenching stories into our constitution; we put policy in it.

This post is not written for a deep Marsy’s Law policy overview. However, a couple examples of why policy is more important to focus on than targeting voter emotions to “win” will show that the policy in Marsy’s Law will actually cause more harm for crime victims than any good that could be obtained by its specific provisions.

First, one Marsy’s Law provision precludes the defense from taking a crime victim’s deposition without their consent. In grand jury states or federal court one can make some arguments for a provision like this. There are no meritorious arguments for this provision in North Dakota because we are not a grand jury state.

Instead, defendants charged with a felony in North Dakota have what is called a preliminary hearing where they can put on their own evidence and a judge decides whether the case should be bound over for a trial. Defendants are free to subpoena victims to testify at these hearings.

Right now, that is very rare because the defense is allowed to take depositions of victims and the judges don’t want to have victims on the stand when there is a courtroom full of other defendants waiting for their cases to get called. If a victim does get subpoenaed to testify at a preliminary hearing, judges will tell defense attorneys to just take the victim’s deposition and stop the questioning when sensitive material starts to come up.

This deposition provision in Marsy’s Law is one policy example showing why if you simply take a California provision and place it in the North Dakota constitution you actually cause crime victims more harm. North Dakota’s current policy allows defense depositions of crime victims under the control of a judge and state’s attorney, but outside of public viewing so the victims are not inconvenienced by having to testify at preliminary hearings.

Marsy’s Law changes that because its provisions are based on emotions and not good policy considerations for our state.

A second rather remarkable example of Marsy’s Law emotions trumping policy deals with how we notify crime victims of court hearings, bond releases, and parole hearings.

The central thesis behind Marsy’s Law is the Marsy story itself. Our state’s media normally includes a version of the Marsy story in any reporting about Marsy’s Law.

Marsy, the sister of the billionaire guy, was murdered by a stalker ex-boyfriend in California in 1983. Shortly after the murder, Marsy’s brother and mother stopped at a grocery store after visiting her grave and ran into her killer who had posted bond on his murder charge. Marsy’s family hadn’t been notified that he had been released. It is a very gripping, frightening, and sad story.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]This deposition provision in Marsy’s Law is one policy example showing why if you simply take a California provision and place it in the North Dakota constitution you actually cause crime victims more harm.[/mks_pullquote]

From a policy perspective, however, the North Dakota legislature addressed situations like this years ago. If you click here you will see our state’s crime victim notification policies, explained in the frequently asked questions section.

You can check on offender status or register for telephone and email notification when an offender’s status changes. When certain status changes take place, the system will automatically make a call to all registered persons. The system will continue to call for at least 24 hours and in some cases 48 hours until the registered caller receives the message and puts in his/her personal identification number. Email notifications are sent 24 hours a day as well.

Standard information available through the service includes inmate custody status and location, court case information and hearing changes, sentence expiration date and referral information for law enforcement and victim service provider organizations.

So why do we need Marsy’s Law in North Dakota when we have invested in an automated system that integrates courts, county jail, and Department of Corrections (DOC) computer systems so victims are readily notified of anything going on in their case if they want to be? \

Marsy’s brother has reportedly already spent $1 million dollars in North Dakota on this project, and I have yet to see any of that money spent to explain to the public why our current system is in need of a constitutional fix.

It gets worse.

You will note that in the notification system the victim has to register to be automatically notified of any case developments – which only makes sense so the state will know where to call, email, or text the information the victim would like to know.

In the Marsy’s Law provision that creates mandates on North Dakota county jail staff to notify crime victims of a person being released on bond, there is no requirement that the victim request or register to get that information. Victims just have a “right” to get it.

Therefore, our automated system won’t work if judges, should Marsy’s Law pass, interpret that provision as it is written. This particular Marsy’s Law provision simply says victims of any crime involving a “physical, psychological, or financial” harm to someone gives them “The right to be promptly notified of any release or escape of the accused.”

In the similar provision in California, at least they made the victim request the notifications.

I doubt the manager of your local Cenex wants a call from a jailer to inform them that some guy that bounced a check (financial harm) is posting bail. But, that’s what Marsy’s Law proposes for North Dakota, which is “policy” a far cry from the emotions attached to the Marsy story that is often repeated by the media to the public.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]I doubt the manager of your local Cenex wants a call from a jailer to inform them that some guy that bounced a check (financial harm) is posting bail. But, that’s what Marsy’s Law proposes for North Dakota…[/mks_pullquote]

The Marsy’s Law victim notification provisions are written in such a way that they instill human error and government inefficiency into our state constitution. North Dakota’s automated victim notifications, upon registration, is a much better policy than what Marsy’s Law proposes.

Shouldn’t there have to be some demonstration of policy flaws in our current laws and victim notification systems before spooling- up public emotions about running into murderers at grocery stores?

So, why would they file their petitions two months early? Doing this risks the media getting burned out on reporting the emotion-laced stories, and maybe doing actual reporting of the many policy flaws in Marsy’s Law. In every state that it’s being proposed, professional political operatives with well-known in-state names are fronting Marsy’s Law campaigns so they look like localized efforts.

These people know what they are doing, it’s just that I can’t figure out what they are doing by this early filing?

I first thought that maybe they were going to jet in some law professor from Berkeley or California prosecutor to educate us all on Marsy’s Law, and they wanted their petitions filed before doing that. But then I thought that doing something like that would just create a policy debate with the Marsy’s Law opponents who operate under a completely different criminal justice system here than in California, so I don’t think that is why they filed their petitions so early.

I had pegged July 1st for them filing their petitions because that still would give them plenty of time to run all sorts of compelling and sad story ads long before people start to vote. But then they filed their petitions way before that?

Help me here. Why?