There are a lot of great ways to help crime victims in Montana, but Marsy’s Law clearly isn’t one of them.
Though the constitutional amendment approved by voters last fall has been dubbed the “victims’ bill of rights,” we want to make clear from the start that the 18 new rights created by the initiative are not just for victims.
Notably, the new rights kick in well before the courts have even had a chance to determine whether a crime has been committed, which means they apply to accusers regardless of whether they are telling the truth or not. The rights also apply to the spouse, parent, grandparent, child, sibling, grandchild, guardian and others with a similar relationship to the accuser.
Part of the new law requires all of these people to be notified about the steps of a criminal proceeding, which means authorities throughout the state would have to spend a lot more time trying to track down people who may or may not be involved and a lot less time ensuring justice is served.
Here in Helena, Lewis and Clark County Attorney Leo Gallagher has said it will “force me to make the impossible choice between seeking justice for all Montanans and enforcing long-standing constitutional protections or serving in the narrow, competing interests of Marsy’s Law’s newly expanded pool of victims harmed or allegedly harmed by even the most petty of offenders.”
The law also broadly prohibits the release of information that could be used to locate an accuser, but doesn’t specify what that includes.
In Helena, local police interpret the law to include the dispatcher radio traffic we monitor every day to keep our community informed about things like crimes, forest fires, traffic accidents and other public safety matters. And any delays in reporting on these types of emergencies would impede the public’s ability to protect itself.
“Since radio traffic commonly contains information that could help those not entitled to the information under Marsy’s Law, including the media, identify or locate a victim of a crime, all traffic would be encrypted,” Assistant Police Chief Steve Hagen said.
Helena police would also remove the locations of crimes from their daily public reports, which would deny people their right to know what kind of illegal activity is happening in their neighborhoods, public parks and schools.
In some parts of the state, such as our neighbor Cascade County, law enforcement is even considering withholding the names of homicide victims because of the new law. Currently, the standard practice is to release the name after family members of the deceased have been notified.
Proponents of Marsy’s Law have argued that some officials are interpreting the initiative incorrectly, and that it isn’t intended to be as restrictive as they are making it. That may be the case, but that doesn’t change what law enforcement is planning to do. And it would take a long and arduous litigation process to determine exactly how the law is supposed to be implemented, because the wording of the initiative doesn’t say.
This is exactly what we are trying to avoid by joining a court challenge to Marsy’s Law filed by the American Civil Liberties Union of Montana, Montana Association of Counties, Montana Association of Criminal Defense Lawyers, a victims’ rights advocate and our own county attorney.
In addition to the concerns noted above, our argument also notes that Marsy’s Law is clearly unconstitutional.
Not only does Marsy’s Law encroach upon every Montanan’s constitutionally protected right to observe government processes, but it violates the “single subject” rule of the Constitution. By adding requirements to the section of the constitution that pertains to the public’s right to know, the law has amended this portion of the Constitution without giving notice to voters as required by law.
We aren’t opposed to creating more protections for crime victims, and we believe Marsy’s Law was a well-intentioned effort to do so.
But it has become clear that this initiative would do more harm than good, and we hope it will be replaced by something more collaborative and meaningful for victims of crimes in Montana.