South Dakota could become first state to repeal Marsy's Law

AP News
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Posted: Jan 25, 2018 7:21 PM

PIERRE, S.D. (AP) — Some South Dakota legislators want to repeal a voter-approved constitutional "bill of rights" for crime victims, citing unintended consequences like high costs to counties and protections they say have actually hampered investigations.

South Dakota is the first state to seek to repeal "Marsy's Law" of the six that enacted it, said Gail Gitcho, a spokeswoman for Marsy's Law for All. Montana's Supreme Court recently tossed the constitutional amendment that voters approved in 2016, citing flaws in how it was written.

It's named after California college student Marsalee "Marsy" Nicholas, who was stalked and killed in 1983 by an ex-boyfriend. It has restricted access to some victim information and guarantees victims or their families will be notified about such things as court dates and a perpetrator's release. Some of those things are codified separately in state law.

South Dakota House Speaker Mark Mickelson said Thursday that lawmakers would be seeking to strengthen victims' rights provisions already in state law before asking voters to repeal the Marsy's Law constitutional amendment they passed in 2016.

"We're going to strengthen South Dakota victims' rights," Mickelson said. "Part of that is removing the unintended consequences of Marsy's Law from the constitution."

The measure has been approved by voters in California, Ohio, Illinois, Montana, North Dakota and South Dakota.

The South Dakota amendment established constitutional rights for crime victims including privacy, protection from harassment or abuse and timely notice of trial, sentencing and post-judgment proceedings. The rights also extend to a victim's spouse and family members.

"If it goes back into statute, then those rights are spineless. They have no teeth," Gitcho said. "It looks like the speaker wants to take away rights from people that were already guaranteed to them by the constitution."

But Mickelson said he and others are trying to fix unintended consequences from Marsy's Law that have degraded victims' rights. Minnehaha County Sheriff Mike Milstead said his office depends on the eyes and ears of the public to help the Sioux Falls-based department solve cases, but the amendment has limited the information they can provide.

"We struggle sometimes being able to share enough information with the public to have them help us in solving crimes," Milstead said.

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The package of legislation aimed at strengthening state law and supplanting the constitutional amendment would clarify that victims have to opt into their rights, expand the definition of victim to encompass additional crimes and allow victims to name representatives to act on their behalf.

The Marsy's Law repeal proposal would go to voters in the November election, potentially with replacement language saying that victims have the "right to be treated with fairness and respect for their dignity and the right to be free from intimidation, harassment and abuse."

A week after Marsy Nicholas was killed, her mother and brother were confronted by the suspect at a store. They did not know the man had been released on bail. Her brother, Broadcom Corp. co-founder Henry Nicholas, campaigned to pass Marsy's Law first in California in 2008, then in other states.

The South Dakota amendment passed with about 60 percent support.