In New Hampshire, the senate has overwhelmingly approved a constitutional amendment known as Marsy’s Law.
If it wins final approval from voters this fall, the amendment would enshrine a list of rights for crime victims into the state constitution. They include the right to be notified of when the accused is released on bail, the right to be heard at sentencing hearings, and the right to reasonable protection from the accused.
Marsy’s Law supporters in New Hampshire say the amendment is the only way to level the playing field between defendants and victims in the criminal justice system. Opponents warn of interfering with due process for the accused and of unintended consequences for the court system.
But as senators in New Hampshire were debating these points in Concord last week, there was little mention given to the fact that just a few weeks earlier lawmakers in Atlanta and Tallahassee had done the same thing.
New Hampshire is just one of about a dozen states considering a version of Marsy’s Law. In each state, the debate is playing out in remarkably similar ways, like a dozen alternate Marsy’s Law universes.
Behind all of them is one well-funded, sophisticated campaign called Marsy’s Law for All. The group’s goal is to get crime victims’ rights into every state’s constitution and ultimately the U.S. Constitution.
Wherever it goes, the Marsy’s Law campaign uses largely the same playbook: hire a team of top lobbyists, secure big political endorsements, and a run a polished ad campaign.
The campaign has its origins in the story of Marsy Nicholas, who was murdered by an ex-boyfriend in California in 1983.
Just a week after the murder, Henry Nicholas and Marcella Leach, Marsy’s brother and mother, ran into him while he was out on bail.
They told the story to a local TV station in LA in 2009.
“After the funeral, my husband wanted me to get a loaf of bread in the market,” said Leach, “and I went in and he was coming out of the market. But we weren’t notified or anything.”
“Standing there, staring down my mother,” added Nicholas.
The suspect was later convicted. He died in prison while serving his sentence.
That might have been the end of the story except that years later, Henry Nicholas started a tech company called Broadcom and became a billionaire.
In 2008, Nicholas poured millions of dollars into a campaign for a California state constitutional amendment designed to make sure that moment outside the grocery store wouldn’t happen to others. He called the initiative Marsy’s Law.
It was adopted in California with 54% of the vote.
Since then, Nicholas has marched to victory in five other states, convincing lawmakers and voters to rewrite their constitutions. Along the way he’s spent more than $20 million.
A spokesperson for Marsy’s Law for All said Henry Nicholas wasn’t available for an interview and that he prefers to “stay behind the scenes.”
The nationwide push for Marsy’s Law is itself part of a broader movement, says Collin Miller, a law professor at the University of South Carolina. He says in recent decades, the victims’ rights movement has led to things like victim impact statements and sex-offender registries.
“This started in the ’70s a bit, then it got traction in the ’80s with the murder of Sharon Tate” by members of the so-called Manson Family, said Miller, adding that Tate’s mother “made the big push in California for victim impact statements and that really got the ball rolling.”
But these efforts haven’t been without their critics. The American Civil Liberties Union has argued Marsy’s Law infringes on the presumption of innocence by granting rights to a victim before a defendant has been convicted of a crime.
The organization also takes issue with what it characterizes as an overly broad definition of “victim” in the amendment proposed for New Hampshire, as it includes victims of misdemeanor crimes where defendants are not entitled to legal counsel.
The Marsy’s Law campaign says it expects to spend millions of dollars to support the amendment. But the idea that a California billionaire could lead the charge to amend the New Hampshire Constitution is also rubbing some local lawmakers the wrong way.
“It bothers me a lot,” said Democratic state Rep. Marjorie Smith. She calls the whole thing a marketing effort that has little to do with New Hampshire.
“It is another example of how large concentrations of money can affect the outcome of an election or something like this that has very little to do with the merits,” said Smith.
A spokesperson for Marsy’s Law in New Hampshire says critics focus on the process “because they know they cannot win on the merits of the issue.” The spokesperson also pointed out that many state groups, like the ACLU or labor unions, are supported by resources from national parent organizations.
Amanda Grady Sexton, state director for the Marsy’s Law campaign, disagrees with the argument that the amendment isn’t a response to a local problem. Sexton has worked with the New Hampshire Coalition Against Domestic and Sexual Violence since 2001 and says acquiring constitutional rights for crime victims has long been a goal for her organization.
“We recruited Marsy’s Law to New Hampshire to help us to achieve that goal,” said Sexton. “And without those resources, we don’t believe it would be possible. This is truly a once-in-a-lifetime opportunity.”
The campaign that Sexton recruited to New Hampshire is a well-oiled machine that has found success in other states, like South Dakota, with star-studded TV ad campaigns.
“They run $2 million of Kelsey Grammer in a TV ad and we get it,” chuckled South Dakota House Speaker Mark Mickelson.
After the amendment was passed in his state via a 2016 ballot initiative, Mickelson says county courts started complaining about an increase in administrative costs, to the tune of several million dollars. And the amendment has had other unintended consequences.
“I’ve got a woman whose husband was killed in a car accident in August of last year and she can’t get the crime report from [the Department of] Public Safety because they’re afraid to release the information,” Mickelson said. “They’re not sure if there was a crime, and if there was, who the victim is.”
After negotiating a compromise earlier this year, Mickelson and the Marsy’s Law South Dakota campaign are backing a second constitutional amendment to fix the issues with the first one.
Mickelson’s advice to lawmakers here: “just make sure that what you’re putting into the constitution is something that you can live with for a long time.”
So far, lawmakers in New Hampshire seem to be saying they can live with it for a long time. The state Senate passed the amendment by a vote of 20-3. The measure also boasts an impressive list of supporters, from the governor to legislative leaders in both parties.
Still, Marsy’s Law faces a steep road ahead in New Hampshire, which has a higher bar for constitutional amendments than most states: three-fifths approval from both chambers of the Legislature, followed by two-thirds approval from voters.
Groups like the New Hampshire-ACLU meanwhile are gearing up with their own lobbyists to oppose the amendment — just like other ACLU chapters have done in some of those alternate universes.