It’s not often that you see an ACLU attorney, a Republican Senator, a Commonwealth Attorney and members of the Tea Party agreeing on something. This may be a first in Kentucky history, but we all agree that Marsy’s Law is bad for victims and wrong for Kentucky.
A movement that has been sweeping the nation, backed by millions of out-of-state dollars, is rearing its head again in the commonwealth. Marsy’s Law seeks to amend our state’s constitution to create an entirely new set of “rights” and standing for victims or survivors of alleged criminal activity. But the bill promises to do so without any detail, funding, resources or direction. It is once again up for consideration after the Kentucky Supreme Court declared the ballot question put to voters in 2018 was unconstitutional.
Kentucky law already grants victims many of the rights outlined in Marsy’s Law, including the rights to timely notice of all court proceedings, to be heard in release, plea, or sentencing proceedings, to be present at trial and all other proceedings, and the ability to consult with Commonwealth or County Attorneys. Prosecutors’ ofﬁces have victims’ advocates. If victims feel uninformed or unsupported by these advocates, the advocates should be provided with additional resources. If the laws we have in place aren’t serving victims, let’s amend our laws, not our Constitution.
Marsy’s Law uses inconsistent and confusing language that would be at odds with Kentuckians’ constitutional rights and create significant unintended consequences. Some of the state’s top legal minds cannot even untangle the contradictory language in Marsy’s Law. Once when analyzing the legislation, one Kentucky Supreme Court Justice simply remarked: “I don’t know what this means.” One thing Marsy’s Law does is explicitly deny victims a path to seek legal remedies for violations of their rights. Victims of criminal acts need resources and support, not an empty promise. Marsy’s Law provides no guidance to lawmakers or judges on how to prevent violations of the rights guaranteed to all people by the U.S. Constitution.
There are also real financial concerns to consider with Marsy’s Law. It creates a need for substantial additional resources but does not allocate any. For example, the legislation gives victims of criminal acts the right to counsel but provides no mechanism for the state to provide attorneys to victims without the resources to hire an attorney. Similar legislation in North Dakota, a state with less than a quarter the population of Kentucky, was estimated to cost $2 million per year. In North Carolina, Marsy’s Law was estimated to cost $16.4 million to implement and $30.5 million annually in subsequent years. Unfortunately, Kentucky’s Marsy’s Law doesn’t include a fiscal note, so we don’t have an estimate of the costs here.
Many people are afraid to publicly be against Marsy’s Law because of the fear of being perceived to be against victims’ rights. This could not be further from the truth. This amendment will be bad for our criminal justice system. It will inhibit the ability to get to the truth. Its effect will be to further burden, muddy and confuse an already overwhelmed system, which will hurt victims and defendants alike.
Sen. John Schickel is a retired law enforcement officer and Republican Senator representing District 11 in the Kentucky General Assembly. Shane Young is commonwealth’s attorney for Kentucky’s 9th Circuit which covers Hardin County. Heather Gatnarek is a former defense attorney and currently serves as staff attorney at the ACLU of Kentucky. Scott Hofstra is the spokesperson for the United Kentucky Tea Party. Jan Skavdahl is a leader of the Northern Kentucky Tea Party.