Marcy’s law passed easily, now the hard work begins

On Nov. 7, voters in all 88 Ohio counties approved by overwhelming margins a victims’ bill of rights known as Marsy’s Law.

And now, prosecutors’ offices, sheriffs’ departments and police departments in each of those counties must devise their plans for complying with an Ohio constitutional amendment that was written and bankrolled by a billionaire who was embittered by the shoddy treatment his family received in California 34 years ago.

State Issue 1 had no organized opposition. No one wants to be seen as being anti-victim. The Ohio associations of county prosecutors and their counterparts, the public defenders, expressed their opposition in thoughtful statements. And the American Civil Liberties Union warned Marsy’s Law would create conflicts between the Ohio Constitution and the U.S. Constitution that would have to be settled in court.

But their logical arguments were no match for emotional appeals that claimed a need to level the playing field between victims and criminal defendants – or for the more than $8 million that Henry T. Nicholas spent in Ohio to promote the law named after his sister, who was murdered in 1983.

Ohio now has fewer than 90 days to prepare for a constitutional amendment that requires the state (and local jurisdictions) to accommodate any claim by any victim or surviving family members of a deceased victim that their rights are not being given the same weight as the rights of a defendant.

Experience in some of the states that have recently adopted Marsy’s Law would indicate Ohio law enforcers and the judiciary have their work cut out for them. It’s going to take time and it’s going to take money. And at this point, it appears that enforcement of Marsy’s Law is going to be done on a county-by-county, trial-and-error basis.

A spokesman for Ohio Attorney General Mike DeWine says his office will respond to requests for guidance from state legislators if it receives any. And the Ohio Legislative Services Commission says it has not received a request from any legislator to draft enabling legislation for Issue 1.

Effective date

The amendment states that all provisions “shall be self-executing and severable, and shall supersede all conflicting state laws.” It also says the amendment shall take effect 90 days after its approval.

But the amendment doesn’t define a victim beyond someone “who is directly and proximately harmed by the commission of the offense or act.” It calls for “full and timely restitution from the person who committed the criminal offense” but provides no uniform mechanism for enforcement.

It gives the victim a right to privacy, which in other states has allowed the parents of a homicide victim to block the local sheriff’s office from releasing the name of the victim and has allowed motorists to block police departments from releasing vehicle accident reports. In an open society, people shouldn’t be murdered in anonymity or crash their cars in secrecy. But those are the kind of abuses Marsy’s Law invites.

Thousands of potential conflicts between a victim’s rights, a defendant’s rights and the right of the people to know what is happening in their communities are going to have to be hashed out in the coming years across the state.

And while the passage of Issue 1 mandates that the criminal justice system and law enforcement officers across Ohio comply with Marsy’s Law, it is an unfunded mandate. There is no indication the state will be providing money for additional victims’ advocates or for added work for assistant prosecutors, court-appointed defense attorneys or the courts.

Every deputy or police officer in the state will have to be trained to inform crime victims of their rights, whether they’re responding to a burglary, a robbery, a domestic violence complaint or a homicide. And every victim has the right to confer with the attorney for the government.

Passing Issue 1 was easy. Meeting its demands is going to be difficult, perhaps chaotic. Balancing the rights now embodied in the Ohio Constitution with those long established by the U.S. Constitution could prove impossible.

It is irresponsible for state officials and the Legislature to leave it to each county to address the legal and financial challenges of a law that requires fundamental changes in how the justice system works.