A state constitutional amendment passed to expand crime victims’ rights in Montana is being challenged by a broad coalition of civil liberties organizations, the Bozeman Daily Chronicle reports. On Tuesday, June 20, 2017, a group led by the American Civil Liberties Union of Montana petitioned the State’s Supreme Court to prevent the enactment of the Montana Crime Victims Rights Initiative.

Commonly referred to as Marsy’s Law, the amendment would revise Montana’s Constitution to include 18 new rights for victims of crime. Opponents to the change, however, argue that Marsy’s Law improperly expands the definition of “victim” and tramples existing articles of Montana’s Constitution.

Montana Votes For 18 New Crime Victim Rights

Montana’s new law was proposed as a constitutional amendment, using a little-known legislative process recognized in only 18 states. Put to a referendum in November of 2016, the Montana Crime Victims Rights Initiative was approved by over 66% of the State’s voters. In that overwhelming vote, residents chose to expand their home’s founding document with a dramatic range of new rights for survivors of criminal activity:

  1. To due process and to be treated with fairness and respect for the victim’s dignity
  2. To be free from intimidation, harassment and abuse
  3. To be reasonably protected from the accused and any person acting on the accused’s behalf
  4. To have the victim’s safety and welfare considered when setting bail and making release decisions
  5. To prevent the disclosure of information that could be used to locate or harass the victim or that contains confidential or privileged information about the victim
  6. To privacy, including the right to refuse an interview, deposition or other discovery request and to set reasonable conditions on the conduct of any interaction to which the victim consents
  7. To receive reasonable, accurate and timely notice of and to be present at all proceedings involving the criminal conduct, plea, sentencing, adjudication, disposition, release or escape of the defendant or youth accused of delinquency and any proceeding implicating the rights of the victim
  8. To be promptly notified of any release or escape of the accused
  9. To be heard in any proceeding involving the release, plea, sentencing, disposition, adjudication or parole of the defendant or youth accused of delinquency and any proceeding implicating the rights of the victim
  10. To confer with the prosecuting attorney
  11. To provide information regarding the impact the offender’s conduct had on the victim for inclusion in the presentence or predisposition investigation report and to have the information considered in any sentencing or disposition recommendations submitted to the court
  12. To receive a copy of any presentence report and any other report or record relevant to the exercise of a right of the victim, except for those portions made confidential by law
  13. To the prompt return of the victim’s property when no longer needed as evidence in the case
  14. To full and timely restitution
  15. To proceedings free from unreasonable delay and to a prompt and final conclusion of the case and any related postjudgment proceedings
  16. To be informed of the conviction, sentence, adjudication, place and time of incarceration, or other disposition of the offender, including any scheduled release date, actual release date or escape
  17. to be informed of clemency and expungement procedures; to provide information to the Governor, the court, any clemency board, or any other authority and to have that information considered before a decision is made; and to be notified of any decision before the release of the offender
  18. to be informed of the above rights and to be informed that the victim may seek the advice and assistance of an attorney with respect to the above rights

The amendment also requires the State of Montana to make and distribute “Marsy’s cards,” listing each of a victim’s 18 rights.

National Push For Criminal Justice Reform

Colorado’s version of Marsy’s Law is based on a 2008 measure passed in California. In fact, both pieces of legislation bear the same name, honoring a University of California Santa Barbara student who was stalked and murdered by an ex-boyfriend more than twenty years ago. After her death, Marsy Nicholas’ brother Henry, the CEO of a successful semiconductor manufacturer headquartered in Irvine, fought tirelessly to enshrine victims’ rights in the State’s Constitution. Among the successes attributed to Marsy’s Law, ratified by nearly 54% of California voters, are mandatory court-ordered restitution for crime victims. The amendment also granted victims the right to have their voices heard at nearly every stage of criminal justice proceedings, not just during sentencing hearings.

Marcy’s Law Ignores Montana Constitution, Opponents Argue

Following his success in California, Henry Nicholas founded Marsy’s Law For All, a national non-profit organization dedicated to incorporating crime victims’ rights into the US Constitution. Nicholas’ efforts have also proceeded on the state level, where Illinois, North Dakota and South Dakota have also passed their own variants of Marsy’s Law.

This is part of the problem, opponents to Marsy’s Law in Montana say. As they tell the story, a wealthy man from California is now sweeping into other states, spending millions of dollars to support his cause and disregarding the nuances of each jurisdiction’s unique constitution in the process.

Montana’s Constitution, for example, grants citizens of the State a “right to know,” effectively giving residents the ability to examine State documents unless the public interest in disclosing sensitive information is clearly outweighed by the benefits of individual privacy. In their petition to the Montana Supreme Court, groups challenging Marsy’s Law fear the amendment will ask criminal prosecutors to view justice proceedings solely from the perspective of victims. While that sounds laudable on paper, the ACLU argues, it could lead law enforcement officials to keep case details out of the public’s eye, even when the public interest would be served by disclosure.

Should Family Members Be Considered “Victims”?

Marsy’s Law also hopes to expand the legal definition of a crime victim, stretching the concept from people who suffer immediate physical trauma due to crime to include family members and loved ones: “a person who suffers direct or threatened physical, psychological or financial harm as a result of the commission or attempted commission of a crime.”

This new definition, the American Civil Liberties Union argues, is too broad. In fact, the petitioners’ complaint is largely centered on the amendment’s inclusion of “kin and friends” to the group of people considered victims. Instead of advancing victim rights, the ACLU says, Montana’s new rules would actually dilute the powers of traditional victims, “stripping” them of both individual privacy and the limited amount of control survivors are allowed over criminal cases.

Unintended Consequences Could Harm Survivors

Lewis and Clark County Attorney Leo Gallagher, who has joined the American Civil Liberties Union of Montana in filing the suit, says Marsy’s Law will force state prosecutors to make tough decisions – ones that could put the justice system’s duty to uphold societal safety at odds with a newly-established duty to a victim’s loved ones.

Involving family members in criminal cases isn’t always a good thing, Gallagher points out. Survivors of domestic violence, he continues, could be opened up to even greater risks. More than 10 million men and women are physically abused by an intimate partner every year, the National Coalition Against Domestic Violence reports. Montana’s version of Marsy’ Law, by expanding the definition of “crime victim” may give some abusive husbands or wives a right to information and involvement in their partner’s case. Some victims, for that matter, simply don’t want their families and friends to know about crimes.

Even stranger, Marsy’s Law would extend victims’ rights, in theory, to corporations and other non-human entities, opponents note, since multiple Supreme Court rulings have ruled that companies can be considered, at least for some legal purposes, as “persons.”

Supporters of the bill, however, argue that criminal justice in this country has swung too far in the favor of criminal defendants. While opponents believe Marsy’s Law could infringe the rights of accused criminals, victims have few privileges under the law in comparison.