Why journalists and the public should be concerned about Marsy’s Law

January 30, 2019 11:00

This past September, a South Dakota Highway Patrol trooper shot and wounded a man who had physically attacked him during a traffic stop. The incident was investigated, and the trooper was cleared of any wrongdoing. His name was withheld from the public.
 
Then, in November, a South Dakota sheriff’s deputy shot and killed a man who had allegedly fired at officers during a chase. The deputy’s name, too, was kept secret.
 
In January, a man walked into a bank in Sebring, Florida, and opened fire, killing all five people inside. Police only released to journalists and the public the names of two of the five victims; later, the families of two other victims released their names. The fifth victim’s family did not.
 
Also last month, two people were shot dead in a car in Tampa. Police refused to release their names. Police in Tallahassee refused to release much information about a body that was found in the middle of a neighborhood roundabout after an apparent car crash.
 
In most states – and, in the past, in Florida and South Dakota – the names of crime and accident victims, and the names of law enforcement officers involved in the use of lethal force, are part of the public record. No doubt about it.
 
Now, however, voters in Florida, South Dakota and nine other states (California, Georgia, Illinois, Kentucky, Nevada, North Carolina, North Dakota, Ohio and Oklahoma) have approved constitutional amendments that provide extensive rights to crime victims.
 
States with crime victim amendments

Included in some of those states’ amendments are the rights of victims to be kept informed as suspects’ prosecutions and punishments proceed, to be notified if suspects or convicts escape or are lawfully released from custody, and to be present at every court appearance of suspects; many of the amendments ensure that crime victims or their survivors be allowed to speak in certain court proceedings.
 
On their face, those protections sound like great ideas. No-brainers, in fact.
 
However, in some states, the amendments also include language – well-intended, to be sure – that provide additional protections for victims and their families. Many of those additional protections make perfect sense. But one in particular, which exists at least in Florida and South Dakota, allow victims to prevent their names from being release to journalists and, by extension, the public.
 
That’s why police in Sebring, Tampa and Tallahassee, Florida, refused to release the victims’ names as noted above.
 
To be sure, we, as journalists, can – and should – treat crime victims with great care. The RTDNA Code of Ethics states, in part:
 
  • Minimizing harm, particularly to vulnerable victims, should be a consideration in every editorial and ethical decision.
 
  • Certain stakeholders deserve special consideration; these include children, victims, vulnerable adults and other inexperienced with American media. (Emphasis added.)
 
  • The right to broadcast, publish or otherwise share information does not mean it is always right to do so.
 
Still, RTDNA believes that the names of crime victims should be available to journalists and the public. With rare exception – some, admittedly, quite unfortunate – reporters, producers, editors and news directors have exercised great caution not to broadcast or publish the names of victims of sex crimes and other sensitive offenses.
 
More concerning are the South Dakota cases, both of which involved law enforcement officers.
 
The state trooper who shot and wounded a man who attacked him during a traffic stop and the sheriff’s deputy who shot and killed a suspect who had fired on officers both declared after the fact that they – public servants who are paid by taxpayers, have been granted law enforcement commissions by public officials, and who were acting on the public’s behalf when they shot crime suspects – were themselves the victims of crimes. Consequently, their names were withheld from the public.
 
While at least 30 states have constitutional amendments granting crime victims certain rights, those amendments in the 11 states cited here are the product of an organized campaign funded by tech billionaire Henry Nicholas, who cofounded the semiconductor company Broadcom.
 
Nicholas’ sister Marsy was murdered by an ex-boyfriend in California in 1983. Shortly thereafter, that ex-boyfriend confronted Nicholas’ mother in a supermarket. No one had informed the family that the suspect had been released on bail.
 
Hence, the birth of what is now widely known as “Marsy’s Law,” first enacted by California voters in 2008. Variations of it were adapted by 11 other states and in subsequent years – most recently 2018 – although one of those states’ supreme court, in Montana, later ruled it unconstitutional, in part about concerns that parts of the amendment impeded suspects’ rights to a fair trial.
 
The ACLU has been a vocal opponent of Marcy’s Law, not because of its necessary protections for victims, but because many of its versions, the group says, violate the U.S. Constitution’s Fifth Amendment right to a presumption of innocence when one is accused of a crime.
 
Nicholas used more than $70 million of his own money to bankroll passage of Marsy’s Law amendments in six states whose voters adopted them last year, including Florida. His stated ultimate goal is to make it a federal constitutional amendment.
 
In Florida, where Marcy’s Law was known as Amendment 6 on the November ballot, mass confusion has been sewn among law enforcement agencies and the criminal justice system writ large about just what information about crime victims can, and should, be released to the public.
 
As the Miami Herald reported:
 
At issue is language in the amendment to protect the victim’s right “to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.”
 
One key question is whether the right to have information withheld is automatic or if victims have to request the protection, … . Another is what “information and records” should be withheld.
 
The Florida Police Chief’s Association is asking the state legislature to pass a law clarifying that aspect of the amendment. Florida’s First Amendment Foundation has also noted the need for better-defined procedures.
 
RTDNA joins those calls. We would also like to hear from journalists in Florida and the other ten states that have a version of Marsy’s Law. Let us know if you have encountered problems getting information that previously would have been routinely made public. Notify us of any other concerns you may have about it.
 
Send us a note at pressfreedom@rtdna.org.
 
There is a way to balance the rights of crime victims, suspects and the public’s need to know. The current iteration of some states’ versions of Marsy’s Law is not it.