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Omdahl: Lack of research endangers Marsy’s Law

By Staff | Oct 21, 2016

Measure No. 3 on the November ballot calls for inserting a series of victim rights, called Marsy’s Law, into the state constitution.

Financed by California Billionaire Henry T. Nicholas III, the North Dakota effort is chaired by Kathleen Wrigley. Both have had bitter personal experiences with their lack of standing to monitor and intervene in the normal criminal justice processes.

Opponents of Measure No. 3 have been making an issue out of a nonresident billionaire throwing money into a state measure campaign. This is nothing new.

Billionaires have been using their wealth to exploit state initiative and referendum procedures all across the country. In fact, the Koch brothers are now dumping several million to kill an election reform measure in South Dakota.

To clarify the debate over Marsy’s law, we should understand where the various constituencies are coming from.

First, there are the states attorneys whose job it is prosecute criminal behavior. Under Marsy’s Law, a victim would have the right to be informed about bail provisions, plea agreements and trial delays.

For the part-time states attorneys in rural counties, this intervention would take time away from their private practice. If fewer plea agreements and more trials resulted from Marsy’s law, this could burden their prosecutorial load and distract from their private casework.

Next, we have the defense attorneys who are beneficiaries of a cumbersome system that is under the radar when it comes to accountability. They like to game the criminal justice system by stalling for time until the system goes soft and clients get a plea deal. Under Marsy’s Law, someone could monitor cozy settlements.

On the other side, we have some law enforcement folks. They are supporting Marsy’s Law because they invest a lot of time and personal risk apprehending wrongdoers who, if convicted, would spend years behind bars. Instead, a plea agreement comes out with probation or suspended sentences.

After this happens a few times, they become disillusioned and start to feel that their efforts are being washed down the drain with plea deals. They see Marsy’s Law as putting more teeth in the process.

Opponents of Measure #3 argue that Marsy’s Law is going to attract thousands of victims and cost a lot of money. San Francisco Public Defender Jeff Adachi says that, at most, 20 percent of crime victims have used Marsy’s Law in California.

The cost of Marsy’s Law will crop up randomly across the state in a variety of venues and will be absorbed by the existing criminal justice system. There will be no special appropriations.

In summary, Marsy’s Law proposes new levels of accountability and transparency in the criminal justice process. But there is one problem. Measure No. 3 is based on skimpy anecdotal information supplied by a handful of victims.

How many plea deals are letting wrongdoers off easy? We have no study to give us an answer.

How often do states attorneys avoid prosecution to save the county the cost of a trial or to cut down on their workloads? We don’t know.

How often does the state parole board release risky wrongdoers?

How well does the limited parole and probation staff monitor wrongdoers under their supervision?

In other words, do voters have enough information to pass judgment on a criminal justice system about which they know little?

In the absence of research, voters will be forced to cast their ballots on the basis of their general impressions. The bottom line question is this: does the North Dakota criminal justice need more accountability and transparency to protect victims, or is it sufficiently accountable and transparent as it stands.

Most of us don’t know.

Omdahl is a former lieutenant governor and former political science professor at UND.

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