Marsy's Law

Background

Marsy Nicholas was the sister of Henry Nicholas, the Co-Founder and former Co-Chairman of the Board, President and Chief Executive Officer of Broadcom Corporation. In 1983, Marsy, then a senior at UC Santa Barbara, was stalked and murdered by her ex-boyfriend. Her murderer, Kerry Conley, was tried by a Los Angeles jury and sentenced to life in prison with the possibility of parole. Although Conley died in prison one year before Marsy's Law passed in November 2008, the Nicholas family attended numerous parole hearings, which haunted them for years.

Nicholas was the main organizer of the campaign to pass Marsy's Law, whom former California Governor Pete Wilson called the "driving force" behind the constitutional amendment. In late 2007, Nicholas convened a group, including Wilson, to consider putting a comprehensive victims' rights constitutional amendment on the ballot in California. He recruited legal scholars and former prosecutors to draft, rework and write the final version of the bill. In addition to Nicholas and Wilson, contributors included:

In late February 2008, California non-profit corporation Marsy's Law: Justice for Crime Victims proposed Marsy's Law as a way of giving crime victims constitutionally protected rights such as notifications to victims and informing those involved in the criminal justice process of the Marsy's Law victim rights. Voters passed the Constitutional Amendment in November 2008 by a margin of 53.84% to 46.16%, despite being opposed by nearly every major newspaper in the state.

In 2009, Henry Nicholas formed Marsy's Law for All, which has the following objectives:

Impact of Marsy's Law

Since its passage, Marsy's Law has had a major impact on how victims are treated in the state's judicial system. Now, when any victim of crime is contacted by law enforcement, just as the accused are read their Miranda Rights, that victim is immediately informed of his or her Marsy's Rights and provided with "Marsy's Card" a small foldout containing a full description of each of the 17 Marsy's Rights, which is also available for download in 17 languages on the California Office of the Attorney General website. The California Attorney General has published these rights, which now are utilized by every law enforcement agency in the state. In addition, each of 58 county District Attorney's offices are required to inform victims of these rights at the time a case is filed for criminal prosecution. In 2010, the California Peace Officer Standards and Training (POST) amended its Learning Domain 04 to include Marsy’s Law Training in its Basic Police Academy.

In January 2010, the University of California, Irvine School of Law and Dean Erwin Chemerinsky partnered with Marsy's Law for All and the National Crime Victim Law Institute to host the first Marsy's Rights attorney training. More than 100 lawyers learned about the provisions of Marsy's Law and how to represent victims in criminal matters.

Victims now have the right to be heard at every stage of the legal criminal proceedings, which means before the judge makes a sentencing offer in the case. Prior to the passage of Proposition 9, most victims did not address the court until after a conviction or plea. In addition, actions to bar victims from the courtroom under a "motion to exclude witnesses" are now routinely denied. Victims have a right to be present in court and prosecutors are trained to call victims who will be witnesses in the case to testify first so they can remain in the courtroom for the entire trial.

Marsy's Law also gives victims the right to be represented by counsel of their choosing, rather than relying on the prosecutor, who has a legal obligation to represent the people of his or her jurisdiction, and not the victim. Marsy's Law rights are enforceable and an adverse ruling against a victim in any context involving these rights can be appealed to a higher court by victims through their own counsel or the District Attorney.

Post-conviction, victims' rights have been impacted by the dramatic increase in the length of time between parole hearings. Before Marsy's Law, the maximum parole denial was five years for convicted murderers and two years for all other crimes. Marsy Nicholas' mother, Marcella Leach, suffered a heart attack at the second parole hearing for Marsy's killer and was unable to attend subsequent hearing for many years. Now parole denials can be imposed for 7, 10 and even 15 years. Statistics show that in 2009, 20% or 656 inmates received parole denials of 7 years or more. In 2009, only 3.5% received denials of two years or less.

Citing the impact of Marsy's Law in extending the time California prison inmates must wait between hearings after parole has been denied, a Stanford University study of 32,000 California prisoners serving life sentences with the possibility of parole found the likelihood of parole for a convicted murderer is 6%. The study also found that the lifer population has increased from 8% of inmates in 1990 to 20% in 2010 and that the average number of years served is 20.

In another study on the impact of Marsy's Law on the parole process, UCLA law student Laura L. Richardson found a doubling in the average length of time imposed between parole hearings since California voters passed the Constitutional Amendment in 2008. But while victims may impact parole decisions, her analysis of 211 parole hearings failed to reveal an increase in victim participation in the parole process.

The California Supreme Court has said it will review two cases, In re Vicks and In re Russo, which address whether the parole impact of Marsy's Law is unconstitutional. In Vicks, the state Court of Appeal, Fourth Appellate District, Division One found that the risk of increased incarceration resulting from longer parole denials under Marsy's Law violated ex post facto principles if applied to prisoners sentenced before the law was passed. However, in Russo, a different panel from the same court ruled that the ability of a prisoner who had been denied parole to petition to advance the date of the next parole hearing protected Marsy’s Law from an ex post facto challenge.

Similar laws in other states

The passage of this law in California has led to efforts in other states to pass similar laws. In Illinois, voters passed an amendment to the state constitution, called Marsy's Law for Illinois. There are efforts to introduce similar Marsy's Laws in Hawaii, Montana, Nevada and South Dakota.

Overview of the Constitutional Amendment

Marsy's Law amended the state constitution and various state laws to (1) expand the legal rights of crime victims and the payment of restitution by criminal offenders, (2) restrict the early release of inmates, and (3) change the procedures for granting and revoking parole. These changes are discussed in more detail below.

Background

In June 1982, California voters approved Proposition 8, known as the Victims Bill of Rights.

Among other changes, the proposition amended the Constitution and various state laws to grant crime victims the right to be notified of, to attend, and to state their views at, sentencing and parole hearings. Other separately enacted laws have created other rights for crime victims, including the opportunity for a victim to obtain a judicial order of protection from harassment by a criminal defendant.

Proposition 8 established the right of crime victims to obtain restitution from any person who committed the crime that caused them to suffer a loss. Restitution often involves replacement of stolen or damaged property or reimbursement of costs that the victim incurred as a result of the crime. A court is required under current state law to order full restitution unless it finds compelling and extraordinary reasons not to do so.

Sometimes, however, judges do not order restitution. Proposition 8 also established a right to "safe, secure and peaceful" schools for students and staff of primary, elementary, junior high, and senior high schools.

Changes made by this measure

Restitution. This measure requires that, without exception, restitution be ordered from offenders who have been convicted, in every case in which a victim suffers a loss. The measure also requires that any funds collected by a court or law enforcement agencies from a person ordered to pay restitution would go to pay that restitution first, in effect prioritizing those payments over other fines and obligations an offender may legally owe. The victim also is entitled to be compensated for legal fees in hiring counsel under Marsy’s Law on the issues relating to the securing of restitution.

Notification and participation of victims in criminal justice proceedings

As noted above, Proposition 8 established a legal right for crime victims to be notified of, to attend, and to state their views at, sentencing and parole hearings. This measure expands these legal rights to include all public criminal proceedings, including the release from custody of offenders after their arrest, but before trial. In addition, victims are given the constitutional right to participate in other aspects of the criminal justice process, such as conferring with prosecutors on the charges filed and arguing for increased charges. Also, law enforcement and criminal prosecution agencies are required to provide victims with specified information, including details on victim's rights.

Other expansions of victims' legal rights

This measure expands the legal rights of crime victims in various other ways, including the following:

Background

The state operates 33 state prisons and other facilities that had a combined adult inmate population of about 171,000 as of May 2008. The costs to operate the California Department of Corrections and Rehabilitation (CDCR) in 2008 are estimated to be approximately $10 billion. The average annual cost to incarcerate an inmate is estimated to be about $46,000. The state prison system is currently experiencing overcrowding because there are not enough permanent beds available for all inmates. As a result, gymnasiums and other rooms in state prisons have been converted to house some inmates.

Both the state Legislature and the courts have been considering various proposals that would reduce overcrowding, including the early release of inmates from state prison. At the time this analysis was prepared, none of these proposals had been adopted. State prison populations are also affected by credits granted to prisoners. These credits, which can be awarded for good behavior or participation in specific programs, reduce the amount of time a prisoner must serve before release. Collectively, the state's 58 counties spend over $2.4 billion on county jails, which have a population in excess of 80,000. There are currently 20 counties where an inmate population cap has been imposed by the federal courts and an additional 12 counties with a self-imposed population cap. In counties with such population caps, inmates are sometimes released early to comply with the limit imposed by the cap. However, some sheriffs also use alternative methods of reducing jail populations, such as confining inmates to home detention with Global Positioning System (GPS) devices.

Changes made

This measure amends the Constitution to require that criminal sentences imposed by the courts be carried out in compliance with the courts' sentencing orders and that such sentences shall not be "substantially diminished" by early release policies to alleviate overcrowding in prison or jail facilities. The measure directs that sufficient funding be provided by the Legislature or county boards of supervisors to house inmates for the full terms of their sentences, except for statutorily authorized credits which reduce those sentences.

Background

The Board of Parole Hearings conducts two different types of proceedings relating to parole. First, before CDCR releases an individual who has been sentenced to life in prison with the possibility of parole, the inmate must go before the board for a parole consideration hearing. Second, the board has authority to return to state prison for up to a year an individual who has been released on parole but who subsequently commits a parole violation. (Such a process is referred to as parole revocation.) A federal court order requires the state to provide legal counsel to parolees, including assistance at hearings related to parole revocation charges.

Changes made

Parole Consideration Procedures for Lifers. This measure changes the procedures to be followed by the board when it considers the release from prison of inmates with a life sentence. Specifically:

Editorial boards opposed

The Los Angeles Times encouraged a "no" vote on 9, saying, "If the concern is protection of families from further victimization, as proponents claim, that goal can be met without granting families a new and inappropriate role in prosecutions."

Other editorial boards opposed:

Editorial boards in favor