The unintended consequences of Marsy’s Law will be worse than we thought for Montana.

The voter-approved law warrants the Montana Supreme Court review sought by a lawsuit filed last week in Helena. The petition was filed by the Montana Association of Counties, Montana Association of Criminal Defense Attorneys, ACLU of Montana, the Lewis and Clark County attorney and a victims’ rights advocate.

Last fall when a California man spent more than $2 million to pass Marsy’s Law as Constitutional Initiative 116, a Gazette opinion cautioned voters: “While the initiative known as Marsy’s law aims to protect victims’ rights, it would have some unintended consequences.”

Unknown costs

The initiative text is lengthy and based on a law that Henry Nicholas promoted in California after the murder of his sister, Marsy Nicholas. The proposed law duplicated crime victim rights and protections already in Montana law, and vastly expanded the definition of who is a crime victim, adding relatives and friends and even nonhuman entities. The initiative, which 66 percent of Montana voters approved on Nov. 8, requires that victims’ services be available to all victims of all alleged crimes.

Billings and Yellowstone County law enforcement officials cautioned that there would be additional taxpayer costs to implementing Marsy’s Law, but the ballot language simply said that the cost was “unknown.”

Since then, we have seen the Billings City Council amend the city budget to hire additional victim advocate staff in the City Attorney’s Office. The Yellowstone County Commission recently authorized the addition of positions in the Yellowstone County Attorney’s Office.

More concerning than the financial costs are the ways in which Marsy’s Law would conflict with other constitutionally guaranteed rights. For starters, the new law grants family and friends the right to be informed about criminal cases – even if the person who was actually attacked doesn’t want others to know. This could be especially problematic for victims of rape or domestic violence.

The new law may stop the release of basic crime reports, such as the identification of a homicide victim after next of kin have been notified. Under Marsy’s Law, authorities may have to notify many more family and friends.

Even a prominent proponent of Marsy’s Law, District Judge Russell Fagg, acknowledged in a Gazette column that one of its provisions is probably unconstitutional because it would deny the accused the right to face the accuser.

Diluting resources

The petition to the Supreme Court points out that Marsy’s law could take resources away from victims of violent crimes as local authorities try to meet the new mandate to provide services related to all crimes charged and to a much larger pool of “victims.” Long before CI-116 was proposed, Montana law already provided for victims’ assistance in domestic violence cases. Now that assistance will have to be stretched to cover misdemeanor property crimes, too.

Before Marsy’s Law, the Yellowstone County Attorney’s Office already had 7.5 full-time-equivalent employees as victim-witness assistants, while the Billings City Attorney’s Office, which prosecutes only misdemeanors, had 2.5 FTE victim-witness assistants dedicated to domestic violence cases.

Montana’s court system is overloaded with so many cases, that justice can be slow – especially for civil cases. Marsy’s Law will add to that burden.

The U.S. and Montana justice systems are based on the presumption of innocence for the accused. Our Constitution guarantees the right to a fair trial and requires proof beyond reasonable doubt. If Marsy’s Law interferes with those rights – as it apparently would – the result would be more appeals, more retrials and victims subjected to lengthier and repeated court proceedings.

Multiple amendments

Perhaps the simplest argument against CI-116 is that it violates the Montana Constitution requirement that a constitutional initiative can amend only one part of the Constitution. CI-116 changes at least eight sections, according to the lawsuit.

Lewis and Clark County Attorney Leo Gallagher summed up his concerns: “CI-116 will force me to make the impossible choice between seeking justice for all Montanans and enforcing longstanding constitutional protections or serving the narrow, competing interests of Mary’s Law’s newly expanded pool of victims harmed or allegedly harmed by even the most petty of offenders.”

Marsy’s Law is scheduled to take effect on July 1. A Supreme Court order delaying implementation pending full consideration of its constitutionality would be in the best interest of Montanans.

— The Billings Gazette

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