Is Marsy’s Law Coming To Iowa?

Unable to run on their record of breaking Iowa’s budget, cutting working families’ paychecks or hiking college students’ tuition, legislative Republicans may have a new messaging tactic for 2018 – pulling voters’ heartstrings over a pretty, blonde white woman killed in the 1980s.

At least that appears to be what’s in store for Iowa politics with a poll being conducted over the past two or three days testing Iowa voters’ thoughts on a potential state constitutional amendment for Marsy’s Law. Starting Line received the poll last night, which asked specific questions about people’s opinion of the Iowa Legislature and whether they’d be more or less likely to support a legislator or candidate who backed Marsy’s Law. It also tested various messaging approaches both in favor of the initiative and against.

Marsy’s Law is a nationwide movement to implement a broad set of victims rights into states’ constitutions. Ohio recently became the sixth state in the country where voters passed the changes through ballot initiative, following California, North Dakota, South Dakota, Illinois and Montana.

The impetus for the movement came from the tragic story of Marsy Nicholas, a University of California Santa Barbara student, who was stalked and murdered by her ex-boyfriend in 1983. A week later, Nicholas’ mother ran into the ex-boyfriend at a grocery store, unaware that he had been released on bail. Nicholas’ brother, Henry Nicholas, later became wealthy through founding and serving as the CEO of Broadcom, a wireless and broadband company, and used some of that success to finance a very well-funded issue advocacy group to support passing Marsy’s Law around the country.

While Marsy’s Law is named a “law,” it is actually constitutional changes designed to give victims of crimes as many constitutional rights as those accused of crimes. Some of the main provisions they push for include:

• Victims and their families are notified of any hearings or procedural motions in case
• Notification of the change of an offender’s custody status
• Victims and their families can be present at all court proceedings and can provide input to the prosecution on plea bargains
• The right for victims to refuse having certain information made public, including the location of a crime
• The right for victims to refuse interviews, deposition or other discovery requests from the defense
• Victims can seek restitution from the accused

In Montana, the amendment passed by voters for Marsy’s Law also “broadened the definition of a crime victim to include family members, guardians or others with close relationships to a victim.”

Some of these proposed rights are already actually conducted by the legal system. Others could bring about significant changes.

The messaging and reasoning behind Marsy’s Law sounds incredibly popular and reasonable at first glance to most voters. Giving victims equal constitutional rights in the legal process is an easy argument to make. But as you might imagine, implementation and unintended consequences have caused problems in other states.

In an editorial titled “Devil is in the Details,” Montana judge Russell Fagg explained that he supported many of the underlying ideas, but certain aspects undermined the entire legal system.

“The one provision I do not support is 1(f), which states the victim has the ‘right to refuse an interview, deposition, or other discovery request…,'” he wrote. “This flies in the face of our constitutional right of confrontation. When a defendant is on trial and his liberty is at stake, the defendant should certainly have the right to interview the alleged victim and find out exactly what the victim’s testimony will be at trial. This is the only way a defendant can access the case and decide whether he should go to trial or not.”

Allowing victims to refuse the release of basic information that is typically public has been problematic in South Dakota. The state largely stopped reporting the names and locations of where crimes were being committed. In a story posted just yesterday from KSFY, a Sioux Falls TV station, South Dakota legislators described why they were planning on repealing large parts of the voter-approved changes.

“They’re not reporting rapes and sexual assaults to the campus community at Augustana as a result of Marsy’s Law and that’s certainly not the intent,” Speaker of the House Mark Mickelson told KSFY. “I just had a woman email me this last week from Watertown who can’t get the accident report of her husband who was killed in an accident.”

And the Montana judicial system quickly got bogged down in carrying out many of Marsy’s Law new provisions to inform victims and their families of legal proceedings. The increased number of victim notifications forced Gallatin County (Bozeman, Montana) to hire two additional staffers at the cost of nearly $100,000. That county already had a victims services department which helped victims of violent crimes through the legal process. Marsy’s Law now adds victims of all crimes, including property crimes, into the mix as well, which victim advocates worried would cut into time spent with those who suffered from violent crimes.

With the much broader definition of what a victim is, it put even more strain on the legal system. Most courts already have a notification system, but with Marsy’s Law it’s constitutionally mandated, so courts had to take extra steps to track down potential victims and their families that may have moved and were difficult to find.

Whether or not the Republican-led Iowa Legislature will take those concerns into consideration is yet to be seen if Marsy’s Law is pushed here. Constitutional ballot questions in Iowa have to be approved by two separate general assemblies in order to get in front of voters. As in, a constitutional ballot measure would need to be voted in favor of this year and in 2019, once legislators elected in 2018 are in place, in order for it to appear on the ballot in 2020.

Constitutional ballot questions are often used for political purposes – one party will get an issue on the ballot that their base is particularly excited about. Iowa Republicans are currently trying to strengthen gun rights in the state constitution with a ballot amendment, which could get strong 2nd Amendment supporters out to the polls, even if they’re not too excited about the Republican candidates that year.

Since Marsy’s Law couldn’t get on the ballot until 2020, the political benefit here would be for candidates loudly running in support of the initiative, or to back Democrats who question specifics of the plan into dangerous positions. It’s not hard to imagine how Republicans hyping the story of a young, white woman’s parents having to meet their daughter’s killer in a grocery store could be used to appeal to the independent suburban women that are quickly trending Democratic.

The Marsy’s Law organization appears to have just recently created a Twitter account for their Iowa branch this month. As of this morning, it’s followed by just two people – their national Twitter handle and a local Republican campaign operative. [Update: a staffer for Republican Congressman David Young unfollowed the account shortly after Starting Line posted this story. Young campaigned heavily in 2016 on Sarah’s Law, drawing on voters’ fears about immigrants following a young Concil Bluffs woman’s murder.]

by Pat Rynard
Posted 1/28/18