Does Marsy’s Law Violate the Constitutional Rights of Criminal Defendants?

florida marsys law explainedFlorida voters approved Amendment 6, the Marsy’s Law Crime Victims Rights Amendment on November 6, 2018. The new law awards crime victims specific rights to be protected by the state constitution. Among these rights are the right to be protected from the accused and the right to have their and their families’ safety considered when courts make decisions to grant bail or release the defendant.

Any law that aims to protect crime victims sounds like a no-brainer. Unfortunately, some provisions of Marsy’s law threaten the constitutional rights of defendants as they pit victims’ rights against defendants’ rights.

Florida’s Marsy’s Law Explained: Victims’ vs. Defendants’ Rights

The founders of our nation established a legal system in which those accused of crimes are entitled to due process. They are also presumed innocent until proven guilty beyond all reasonable doubt. The founders understood that it was important to safeguard individuals’ freedoms from the vast powers of the government. Marsy’s Law amends the Florida constitution to equate the rights of the victim with those of the accused; yet, this could be a false equivalency.

What is Due Process?

Due process is the legal requirement that the state must protect an individual’s constitutional rights. The rights of the accused are protected in the Fifth Amendment of the U.S. Constitution, which states:

No person shall be held to answer for a capital, or otherwise infamous crime…nor be deprived of life, liberty, or property, without due process of law.”

The due process clause limits the government’s power and prevents the state from depriving defendants of life, liberty, and property. Under Marsy’s Law, a victim’s rights are pitted against those of the defendant, while a defendant’s constitutional rights are against the state. Suddenly, a matter between the state and the defendant in a criminal case becomes a battle between two private citizens — something that civil courts are primed to handle. 

Due to this potential  false equivalency, Marsy’s Law could make it easier for an innocent person to be convicted of a crime since there is no language in the law to prevent it from hurting the defendant’s constitutional rights. 

Marsy’s Law provides victims with the right to restitution, reasonable protection, and the right to refuse depositions and discovery requests. Under Marsy’s Law, victims may now have a say in whether a defendant can post bail, whether a sentence is sufficient, and whether they agree with a defendant’s plea. Victims may in’s some situations refuse to participate in proceedings like discovery requests, which are crucial to gathering the evidence needed to show whether a defendant is innocent or guilty. These proceedings are vital to uncovering false allegations and protecting the innocent.

How Marsy’s Law Made it to the Florida Constitution

California tech billionaire Henry Nicholas has been the driving force behind the multi-million dollar campaign “Marsy’s Law for All,” which seeks to inject victims’ rights into each state’s constitution. The goal of Marsy’s Law for All is to amend the state constitutions of all 50 states and eventually, the U.S. Constitution to provide constitutional rights for victims. Although this campaign appears well-intended on the surface, it undermines the rights of defendants and fails to consider that many state constitutions already provide protections for victims.

Expungements May Be More Difficult to Come By Due to Marsy’s Law Changes

Because of Marsy’s Law, it may become more difficult for defendants to post bail, participate in pretrial release programs, and even receive expungements because the victim will have a say in these decisions. It can also delay proceedings as the courts must accommodate victims who choose to participate in these hearings. Almost any action a court takes to determine a defendant’s fate must now make room for the victim’s opinion should she “opt in” to her rights under the new law.

These changes hurt accused individuals and those who have paid their debt to society. Marsy’s Law puts the voices of victims — which are in many cases understandably emotional — on par with the voice of the state, which must make evidence-based decisions relying on the facts of a case.

Find Out If Your Record Can Be Expunged

A criminal defendant seeking an expungement may find that he or she requires more time and resources to make progress toward receiving that expungement. Attorneys with the Umansky Law Firm are committed to helping individuals who have gotten tied up with the criminal justice system fight for a second chance.

Our attorneys are former prosecutors who represent individuals facing all types of criminal charges in Orlando and surrounding areas. We collectively have more than 100 years of experience protecting the rights of defendants. Lead attorney William Umansky is an Executive Council Member for the Orange County Bar Association and a member of the Florida Association of Criminal Defense Lawyers.