Marsy's Law: Unpacking The Victims' Rights Proposal

Sep 28, 2018

Supporters for Marsy's Law, including state Sen. Lauren Book (D-Hollywood) and Constitution Revision Commission member Tim Cerio.
Credit Marsy's Law for Florida

Voters will decide whether to place victims’ rights in the Florida Constitution this November.

Advocates say it’s necessary to give victims a voice in the criminal justice process. But opponents argue these rights already exist under Florida law. 

“My daughter was murdered in Colorado," recalls Pat Tuthill. She remembers her daughter, Peyton. 

Pat Tuthill and her daughter, Peyton.
Credit Marsy's Law for Florida

"She was just getting ready to enter graduate school," continues Tuthill. "And someone, at 11:30 in the morning, broke into her little apartment where she was with two other roommates. She had just interviewed with the cystic fibrosis foundation and returned home where there was someone who had been stalking her, someone she did not know. And she never left again.”

Tuthill says she knows the grief and pain of losing a loved one firsthand. 

“It becomes critical at that moment in time that a survivor has as much information as possible on every aspect of the case,” argues Tuthill.

Enter: Marsy’s Law. Part of Amendment 6, it lists a number of rights for victims, or in cases like Tuthill’s, the victim’s family. 

Some of the protections include:

  • The right to be informed of things happening in your case and recieve timely notification. 
  • The right to be present.
  • The right to speak at court proceedings.
  • The right to restitution.
  • The right to be free from harassment or intimidation.

But victims already have most of these rights under Florida law.

“Victims have rights in the state of Florida," says Deputy Director of the American Civil Liberties Union of Florida Melba Pearson. "Victims have very robust rights in the State of Florida.” 

She criticizes the proposed amendment for doing nothing but muddying the waters.

“It is incredibly vague. Even the title of it is very misleading," argues Pearson. "And when you actually sit down and read through what they’re proposing, there’s nothing new that’s really being added.”

And further, Pearson argues, the ballot proposal creates problems where there are none.

“I think maybe Marsy’s Law is designed for another state where the victims do not have as robust of protections as they do here," continues Pearson. "But it is really something that is serving absolutely no purpose.”

And Pearson is right: Marsy’s Law wasn’t written with Florida in mind.

The law is named for Marsalee Nicholas. She was stalked and killed by her ex-boyfriend in California in 1983. A week after her murder Marsy’s brother, Henry, and her mother were confronted by the accused killer at a grocery store. They said they didn’t know he’d been released on bail.

Since then, Henry Nicholas has spearheaded the Marsy’s Law campaign. First in California in 2008, then in five other states including Illinois and Ohio. And efforts are currently underway in nine more states this election cycle like Georgia, North Carolina and Maine. 

Marsy’s Law for Florida is backed by big money. The campaign received more than $30 million from the national Marsy’s Law for All Foundation, and another $325 thousand from Nicholas himself.

CRC member Tim Cerio.
Credit GrayRobinson

Tim Cerio is a member of the Constitution Revision Commission and proposed the Marsy’s Law amendment. He explains only 15 state constitutions and the U.S. Constitution don't have enumerated victims' rights. And to Cerio, these rights should be universal.

“With all due respect to our opponents, it’s grasping at straws to say that this is really not fit for Florida," argues Cerio. "I mean these are rights that any victim or the loved ones of victims would want to have.”

Cerio says that while these rights are part of Florida law, they’re being ignored.

“As long as these provisions have been in statute, it’s amazing they really are enforced sporadically," Cerio notes. "Even in some of our bigger circuits. The criminal justice system is just getting overwhelmed.” 

Cerio believes the only way to ensure these protections are properly enforced is to list them in Florida's Constitution.

“The fact that the state of Florida and the people of Florida are putting into the constitution these values will give them more weight, it will give them more credence," says Cerio. "And the language of the amendment does allow a state attorney or victim with an avenue for relief. To go to the court and say ‘hey, I’m not being heard.' ”

FSU President Emeritus and Professor of Law Sandy D'Alemberte.
Credit Shawn Mulcahy / WFSU

Sandy D’Alemberte, a former chair of the CRC and served as Dean of the Florida State University Law School, has other concerns. He worries the amendment could severely limit the rights of the accused.

The amendment would add time limits to appeals – two years for civil cases and five years for capital cases. 

“You find, in so many of these capital cases that we simply get it wrong,” notes D'Alemberte. 

The Innocence Project of Florida estimates up to 2.5 percent of inmates are wrongfully convicted. And limiting the time they can appeal could keep innocent people behind bars.

“I’ve represented two clients to try and get compensation for their improper imprisonment," recounts D'Alamberte. "One of them was in prison for 22 years, and one of them was in prison for 25 years. Neither of them ever committed the criminal act for which they were convicted.”

And D’Alemberte argues justice takes time.

“After all, we’re trying to get to the truth," continues D'Alemberte. "And if it takes us a little bit longer to get the truth – we ought to do that.”

The language in the amendment would also allow corporations to qualify as victims. They would receive all the same protections as individuals. And D'Alemberte says that's "not the kind of victim I particularly want to protect through a constitutional amendment."

But Cerio argues the accused will always be protected.

“Marsy’s Law in the state constitution of Florida cannot and will never be interpreted by a court – and has never been interpreted by any court across the country – as being able to infringe on the rights of criminals as guaranteed by the US Constitution,” notes Cerio. 

Cerio defends the time limit on appeals, saying it’s simply a mechanism to keep cases moving along.

“Critics of Marsy’s Law have pointed out that now, it’s in the Constitution. But what they’re often not talking about is it’s still in the discretion of the judge,” argues Cerio.

If a judge does decide to extend the time limit for an appeal, the court then has to explain why to the Legislature.

As for corporations, Cerio says that while large businesses like Walmart would get these protections, that’s not the law’s intent.

“The bottom line is there are a lot of mom-and-pop operations in Florida," explains Cerio. "My in-laws owned a small, impendent pharmacy. They were robbed numerous times. Whether it’s a small family restaurant, whatever, if it’s not a sole-proprietorship, if it is an organized corporation or an LLC we wanted to make sure under the law that these people would be treated as victims.”

Amendment 6 would also increase the judicial retirement age from 70 to 75. And it would prohibit judges from deferring to an administrative agency’s interpretation of a statue or rule.