The well-funded campaign for Marsy’s Law in North Dakota, spearheaded by a wealthy California backer who has donated almost $2.5 million, has featured television ads with crime victims or family members complaining that their rights were neglected by a callous criminal justice system.
North Dakota is one of three states where Marsy’s Law is on the ballot Tuesday, Nov. 8, along with South Dakota and Montana. Proponents are also pushing for it in Nevada, Kentucky, Georgia and Hawaii. Marsy’s Law is already in place in California and Illinois.
If approved by North Dakota voters, the measure would give victims the right to be treated with respect, free from harassment and to be protected from the accused. The measure also would provide victims the right to be protected from the accused and to prevent disclosure of confidential information about the victim, among other provisions.
“No system is perfect,” said Kathleen Wrigley, one of Marsy’s Law’s leading advocates. “There are people falling through the cracks.”
Pamela Perleberg, a Fargo woman whose brother was murdered last year in New Rockford, considers her family one of those who haven’t been well treated by the criminal justice system.
The Perleberg family wasn’t kept informed of court proceedings, including hearings, and was told by the prosecutor, “I don’t represent you, I represent the state,” she said.
“We were totally in the dark,” Perleberg added. “We thought we had to represent ourselves.”
Stories of official indifference—or worse—from prosecutors and others are central to the campaign for Marsy’s Law, but opponents argue that merely placing victim’s rights in the constitution will not magically remove imperfections in what they maintain are some of the nation’s best laws on behalf of victims.
“In any system there are some glitches where things can fall through the cracks,” said Bob Wefald, a former state judge and attorney general who is a leading Marsy’s Law critic.
North Dakota has an automated notification system for victims, he added, that routinely sends notices to 12,000 victims and witnesses who have registered, informing them of court hearings or when those accused or convicted of crimes are released, among other notifications.
“The system’s working,” said Wefald, who himself became a victim when his son was killed in 2013 by a criminally negligent driver in California. “There’s absolutely no system that can make victims whole again. You can’t restore the feeling of loss.”
Wefald and others also argue that Marsy’s Law, which is more than 1,100 words in length, is too long and riddled with ambiguities that would likely trigger a flurry of expensive lawsuits.
“Constitutional amendments should be clear, brief direct,” he said. “Marsy’s Law is none of that.”
Shane Goettle, director of public affairs for Odney Advertising, the firm hired to promote Marsy’s Law, conceded that the proposed constitutional amendment is detailed but argued that is of necessity.
“It is long,” Goettle said. But, he added, “Which one do we take out? Which one is less important than the others?”
In 1987, North Dakota lawmakers passed a package of 21 bills to create broad rights for victims, adopting the so-called “fair treatment standards,” which apply to all victims of crimes.
The legislation, since updated, affords victims and witnesses 18 rights, including the right to be notified of the status of the investigation, whether criminal charges have been filed, notification of pretrial release and to be informed of available services.
Rebecca Stromme, executive director of the North Dakota Women’s Network, said state laws provide ample protection of victim’s rights. As a result, she said, a broad coalition has come out against Marsy’s Law, including victim assistance programs.
“It’s pretty much the entire criminal justice and victim advocacy world in North Dakota,” she said.
Groups opposing the measure include the North Dakota Victim’s Assistance Association, North Dakota Women’s Network, North Dakota Association of Criminal Defense Lawyers, North Dakota State’s Attorneys’ Association, North Dakota Trial Lawyers and First Nations Women’s Alliance.
An intended safeguard in Marsy’s Law for victims actually would be a step backward, Stromme said. If passed, the law would give victims the right to refuse to be interviewed by the defendant, with the intent to spare victims from intimidation.
But victims advocates have worked hard to ensure that victims are free from intimidation, Stromme said, and called the right for victims to refuse an interview a way for abusers to avoid prosecution.
Wrigley, whose brother was a Philadelphia police officer killed in the line of duty, said victim’s rights should be “elevated” by being placed in the constitution to ensure their interests are protected and not ignored.
“Victims need to be a part of the process,” she said.
One problem, according to critics, is that Marsy’s Law broadly defines victims, and provides that victims can “seek the advice of an attorney with respect to their rights,” language that could be interpreted to mean victims have the same right to legal representation as indigent defendants, Wefald said.
If courts were to conclude indigent victims have a constitutional right to legal counsel, state and local taxpayers would have to pay the cost, Wefald said.
The state Office of Management and Budget estimated Marsy’s Law, if passed, would cost $1.1 million for the remainder of the current biennium and $3.9 million for the 2017-19 budget. The analysis predicts additional costs for more numerous hearings and trials, with $916,000 in estimated costs for the state’s Commission on Legal Counsel for Indigents.
Victim support programs in North Dakota now serve about 7,000 crime victims, but that number could swell to all 20,000-plus victims of property crimes, municipal crimes and juvenile crimes, the OMB analysis concluded, costing county governments an estimated $1.44 million in additional costs per biennium.
Marsy’s Law supporters consider those cost estimates inflated and argue if the state really is doing everything it can now for victims, there should not be significant additional costs.
Law enforcement officers are divided over Marsy’s Law.
The North Dakota Fraternal Order of Police opposes the measure, which the group considers unnecessary and believes would unduly burden law enforcement officers because of a vague and broad definition of victim, said Grant Benjamin, a retired Fargo police officer and president of the group, which has about 850 members.
But the North Dakota Sheriffs and Deputies Association supports Marsy’s Law. Pat Heinert, the Burleigh County sheriff, is a leading proponent of Measure 3.
“We in law enforcement don’t do enough for victims,” he said. Although North Dakota has a notification system, victims and witnesses must register to receive notices.
Heinert dismisses concerns that the measure’s definition of victim is too broad, saying, “a victim is a victim” and victims of property crimes should not be left out.
But Mark Friese, a defense lawyer and former Bismarck police officer, said the vague definition of victim is a major flaw that would create major headaches for law enforcement.
As an example, he said a performer or streaker at a concert could flash the crowd—and, under the law, every member would be considered a victim, and would have to be given a Marsy’s Law card informing them of their rights.
“It’s just ludicrous what could happen under Marsy’s Law,” he said.
Law enforcement officers should be able to use their discretion and target their resources where they will do the most good, Friese said.
Goettle, who is a lawyer, said state and local policymakers will have the discretion to decide the kind of victims who would be served.
“That’s a matter of policy,” he said. “They have to work with the resources they have.”