What is Marsy’s Law
The Florida Crime Victims’ Rights Advocacy group sponsored Marsy’s Law and the legislation became an initiative to amend the Florida Constitution in 2018. The initiative passed and has since been known as the "Marsy’s Law." The constitutional amendments created new rights for victims’ specified in Article I, Section 16 of the Florida Constitution. The law was named after a woman named "Marsy" who was killed by her ex-boyfriend in California in 1983. Her brother, Henry Nicholas, wanted to ensure that crime victims would have their rights protected, and he spent more than $100 million campaigning in almost a dozen states to get them passed. The law provides for 17 rights for victims, which include, but are not limited to the right to be timely informed of all critical stages of the proceeding, the statute of limitations if applicable, the right to protection from intimidation or harassment , the right to access to court proceedings free from outside of disruption or interference, and the right to fair and timely restitution. Furthermore, the law covered any form of intimidation or harassment from the accused of any crime against the person. Failure to adhere to these constitutional amendments are subject to penalties, fines, imprisonment, and civil liability. Marsy’s law was once limited to victims of violent crimes, however, the law was amended to include other individuals who may be victims of crimes. These amendments protected victims of nonviolent crimes such as human trafficking, arson, aggravated stalking, and many others. Even though the law is a constitutional amendment and is already in effect, it has been challenged in courts. This law is now being implemented in amended Florida laws and carried out under each state’s laws.
Key Features of Marsy’s Law in Florida
Marsy’s Law in Florida provides a sweeping array of rights for victims of crimes, family members of victims, and witnesses in the criminal justice system. The law is an amendment to the Florida Constitution, Article I, Section 16. These enumerated rights are supposed to be assured for homes in Florida. Unfortunately, despite the Florida Constitution explicitly stating that these rights are to be protected and enforced, courts across the state have not yet complied with the law.
Specifically, in 2019, Florida House Bill 7125, establishing new amendments to Marsy’s Law was passed. This legislation codified Marsy’s Law into statutory laws of the state of Florida. However, there has been pushback around the state to enforce the new law, or at least follow the mandate of the statute. For example, just recently, a case was charged in Orlando Municipal Court where the prosecutor did not provide mandatory notice to the alleged victim. At the request of the victim, they chose to afford the Court an opportunity to enforce the right. With a limitations period approaching, the victim’s attorney had to file a motion to stop the prosecution, as is required under Marsy’s Law.
Given the importance of this moment and the gravity of what is at stake, the victim’s attorney filed their motion for relief without being on notice to do so. Once the court was made aware of the case, the State Attorney opted to voluntarily dismiss the charges and re-file them ensuring compliance with Marsy’s Law in the future.
The above is an example of a case of a failure to comply with the rights afforded to victims under Marsy’s Law. Failure to follow the law in Florida is always a bad idea and can lead to criminal liability. Here, it is essential that the State Attorney and the Judge adhere to their duties and observe the law.
One of the most important aspects of the protections provided to alleged victims and crime witnesses are notifications. Notifications are mandated by the Constitution and statutes so that victims will not continue to be victimized by the system in which they were wronged by criminal actions.
These notifications are to be made at every stage of the criminal prosecution process. This includes being notified of criminal charges, court proceedings, dates, hearings, and any release from jail. Among other mandated notifications, victims are also entitled to notice of the final disposition of the case, including the sentencing.
Additionally, Crime Victims have the right to be included in the legal process. Specifically, this includes the right to communicate with the prosecutor, the right to be present at all stages of the proceedings, as well as the right to be heard at every preceding where post charge release from jail is considered. Furthermore, victims have the right to confer with prosecutors over any negotiated plea agreement. Similarly, upon sentencing, the victim may provide an impact statement to the court.
Disregarding the victim’s rights under Marsy’s Law is a direct violation of their constitutional rights. The Florida Constitution says: "victims of crime, as defined by statute, shall have the right to be notified of and to be present at all critical stages of court proceedings." Section 900.05, Florida Statutes, further states: "A victim of an offense, as defined in s. 943.045, shall have and is entitled to the following rights…. To be informed, upon request, when pretrial intervention is granted."
Another key component of Marsy’s Law is for those that have been victimized and witnesses of crime to be free from intimidation, harassment, and abuse throughout the criminal court process. This protection includes freedom from intimidation through both speech and conduct. For example, no one can harass, intimidate, or otherwise interfere in the rights of victims/witnesses for fear of criminal penalties.
Here, you may ask the question as to what to do if your rights as a victim/witness have been violated, or what do you do as a defense attorney if your client’s rights are being violated?
In the past, a violation of the law was left to the judge to enforce. Here, since circuit courts and state attorneys are reluctant to enforce the law in violation of the constitutional amendment, litigation is required.
Marsy’s Law is the only amendment to the Florida Constitution that specifically directs the legislature to enact a law to implement the provisions of the Florida Constitution. Clearly, there have been many challenges for the legislature as they move forward with new laws to implement the Constitution.
If the legislature cannot get behind the implementation of the law, the second recourse is the courts. Under Article I, Section 24 of the Florida Constitution, that entitles a party the right to sue the state, or the government under certain conditions.
Implementation and Issues
After its adoption, Marsy’s Law had great difficulty in being implemented in Florida. In Breedlove v. State, a case decided on June 20, 2019, the state’s Second District Court of Appeal struck down portions of the law on technical grounds, ruling that its inclusion as a proposal within an unrelated amendment meant that it was not legally passed. The trial court went further and issued a decision that declared the entire ballot initiative unconstitutional. A subsequent decision by the First District Court of Appeal disagreed with the Second and found that states are not required to hold a new election on a proposed constitutional amendment. This decision was subsequently upheld by the Florida Supreme Court, allowing for the implementation of Marsy’s Law to be completed as planned, except for when it pertains to the provision that prevents the release of identifying information for victims of domestic violence, which remains stayed pending further litigation.
The law has faced its share of controversy since its adoption, primarily due to confusion regarding its implementation. One of the most hotly debated provisions of the law ensures that victims are able to be notified of any legal proceedings involving their attack, including the ability to be present during the entire process. The Sixth Judicial Circuit of the State of Florida has begun holding a series of public meetings to ensure that both victims and defendants are aware of all implications of the law. So far, it appears to many observers that the meetings have become more a venue for complaints from victims – with many claiming that they were not notified of a hearing or court appearance even under the old set of amendments – than they have been for concerns about the rights of defendants in the state.
Supporters argue that their intentions are not to allow justice to go lightly on defendants, but rather that the intent of the law is to ensure that victims have the opportunity to receive appropriate closure after trauma. Critics assert, however, that the law might make it more difficult for defendants to receive a fair trial due to increased vendettas from involved parties.
Effects on the Judicial System
Marsy’s Law has had a profound impact on the Florida criminal justice system. The 2017 Justice Applied report, created by the Criminal Justice Center of the Police Foundation, gives an account of how four county court systems have been impacted by Marsy’s Law. Before Marsy’s Law was enacted in Florida, victims were included in plea deals to a limited extent. Now, there are policies directing prosecutors to meet with victims before a plea deal is made in order to ascertain their position in the case. Victims are now much more active participants in the criminal justice process.
Marsy’s Law in Florida also appears to have led to more victims choosing to participate in various stages of the criminal process. This is especially true for victims of crimes involving people they know, as opposed to stranger crimes. For example, only 21% of victims of stranger crimes attend arraignments, while 41% of victims of non-stranger crimes attend. The increased participation may be due, at least in part, to prosecutors reaching out and obtaining their information from law enforcement officers. Victims who do not wish to be involved in the entire process are able to opt-out of certain stages once prosecutors have their information from law enforcement officers.
There has also been an increase in the number of victims who are informed of court proceedings and obtain information about procedures and resources . It was found that the greatest barrier for victims concerning resource utilization is knowledge of how to access these resources. This appears to be an area where Marsy’s Law has had a significant impact, as there are policies in place intended to facilitate victims’ knowledge of available resources and services. Some officials believe that it is simply a matter of time before all of the court staff is trained on the new requirements to encourage victims’ participation, even though this variable hasn’t been analyzed yet.
Despite the positive findings in the Justice Applied report, it was also found that there are unequal benefits between rural and urban areas in regard to awareness of rights under Marsy’s Law. Urban areas appear to be better at making information available to the public through resources like flyers and brochures. Another issue brought up in the report is that most victims choose not to be present for hearings. This has led to a few people asking if there should be some consideration about how hearings are scheduled for victims. Other recommendations made in the report include clarifying the role of the presiding judge when it comes to victims’ rights.
Marsy’s law has certainly changed the way Florida criminal justice agencies interact with victims.
Court Cases and Analysis
In recent years, a number of notable legal cases in Florida have addressed Marsy’s Law. The Florida Supreme Court has dealt with the issue of when the constitutional right to privacy of a victim or victim’s family member would interfere with the right of an accused to a fair trial. In 2004, the Florida Supreme Court in State v. Krejci, 871 So.2d 830 (Fla. 2004), involved a request for public release of an investigative paper concerning an insurance fraud action that had been sent by an investigator from the Palm Beach County Sheriff’s Office. The investigative report revealed that there was a personal representative on the insurance claim who was the grandfather of the victim in a murder case. The defense attorney sought the release during jury selection of the murder trial. The trial court granted the motion to release the report, stressing the public right to information and the defendant’s right to a fair trial, and the court indicated that the report contained no confidential information. The Florida Supreme Court quashed the trial court’s order, finding that the report would invade the victim’s family’s privacy interest, and that the victim’s family had privacy interests in the police investigation of the killing. The privacy interests of the victim’s family outweighed the defendant’s right to a fair trial and the public’s right to access to courts. The court also found that the nature and extent of the privacy interest fell within the scope of Marsy’s Law and the statutory exemption in section 119.071(2)(h), Florida Statutes. See §119.071(2), Fla.Stat. (2004). In State v. Novaton, 634 So.2d 607 (Fla.1994), for example, the Florida Supreme Court addressed the issues of whether the defendant was prejudiced by a notice of an expert witness that did not include a subject matter or area of expertise and whether the defendant was denied a fair trial when the state violated discovery rules. The court determined that even though the prosecutor provided the defendant with informal notice of the witness, the trial court did not abuse its discretion by refusing to allow the prosecution to call the witness, finding that the prosecution failed to comply with Supreme Court rules that required discovery of the names and addresses and areas of expertise of expert witnesses which the state intends to call as witnesses at trial.
The Future of Marsy’s Law in Florida
As Marsy’s Law continues to evolve in Florida, several factors may contribute to its further development or potential amendment. As with any law, the window for legislative change remains open, particularly in a state like Florida where change can often be swift and decisive.
One possible future development could involve a more comprehensive interpretation of the rights granted under Marsy’s Law. As the law is applied in more court cases, there may be subsequent reviews and possible amendments based on judicial interpretations. For instance, the level of specificity required in warrants or subpoenas may be refined to balance victim privacy with the need for law enforcement transparency.
Another future possibility may involve increased public support for enhanced funding for victim services and public awareness campaigns. As victims and their families become more aware of their rights under Marsy’s Law, additional pressure might be exerted on legislators to ensure that adequate resources are allocated to enforce these rights and to support the infrastructure designed to assist victims.
Additionally , ongoing debates surrounding the balance between victim’s rights and the rights of the accused could potentially strengthen the provisions of Marsy’s Law. Any proposal that involves strengthening victim protections—such as the right to legal counsel or stronger measures against harassment—could gain traction if supported by the public and advocacy groups.
Finally, although Marsy’s Law is still relatively new in the legal landscape, neighboring states and communities have recently considered new constitutional amendments focusing on crime victims’ rights; the language of these proposals often explicitly mentions Marsy’s Law. Thus, the continued efforts of Marsy’s Law proponents across the country could reflect back positively to Florida in shaping how the law is adhered to and implemented.
In every aspect—from judicial decision-making to public awareness campaigns—Marsy’s Law continues to be in the spotlight for debate, examination, and potential revision. And as debates remain current in other states, local legislators and advocates continue to focus on how to make Marsy’s Law a truly effective tool.