Guest op-ed: Marsy's Law undermines Kentucky Constitution

Senate11

On Election Day, Tuesday, Nov. 6, citizens will vote on whether to amend our Kentucky State Constitution. The proposed amendment is known as Marsy’s Law.

The Marsy’s Law campaign originated in California after a woman was tragically killed by her former boyfriend. The ex-boyfriend was released from jail on bond and proceeded to confront her family in a supermarket.

In a recent ruling, Franklin County Circuit Judge Thomas Wingate correctly concluded that votes for this amendment should not have legal effect.

The ballot language proposed was too vague and did not adequately explain the many details of this proposed constitutional amendment. Someone who reads the brief ballot language would have little insight into its many components and would see no reason to vote against a vague request to enhance victims’ rights. It is my hope that the Supreme Court of Kentucky will agree with the Franklin County Circuit Court’s decision, and that votes on this measure will not be certified.

What’s wrong with this proposed constitutional amendment? Plenty.

While the individuals sponsoring this legislation no doubt have good intentions, they do not take into account the history and design of our commonwealth’s constitution. The Bill of Rights in it was designed to protect citizens from the powers of government. The government has tremendous power.  They can confiscate your property, put you in prison, and even execute you. Our founders learned the lessons of history well and correctly understood that individuals needed specific constitutional protections from government. Protections of actions between citizens were meant to be statutory, and legislated into the criminal code.

Kentucky has some of the best laws in the nation to keep crime victims informed. We should improve these statutes. However, amending the constitution toward this end and others could create many far-reaching and unintended consequences undermining our form of government and justice system. This amendment would actually place the constitution in conflict with itself.

The first duty of a prosecutor is to find the truth, and only proceed with a prosecution if there is adequate evidence for a conviction. Marsy’s Law might compromise a prosecutor’s ability to fulfill this obligation. Due process requires that a prosecutor must provide a certain standard of evidence beyond a reasonable doubt. This is a critical safeguard in our justice system, and Marsy’s Law could compromise this protection.

Let me reiterate an earlier point: the intentions behind this bill are good. However, what this California law attempts to fix does not appear to be broken here in Kentucky.  The commonwealth already has the Kentucky Crime Victim Bill of Rights codified in KRS 421.500 to .576. Under Kentucky's existing law, Marsy’s family would have been notified before the individual was released from jail.

The mere presence of Marsy’s Law on the ballot in Kentucky is the result of a massive lobbying operation funded from outside the state. Over the last several years, more than $300,000 has been spent on this effort just in the Commonwealth of Kentucky. It is the most expensive lobbying effort that Kentucky has ever seen by outside interests attempting to change our constitution.

Marsy’s Law simply does not belong in our commonwealth’s constitution. Kentucky’s constitution sets forth the powers and functions of the branches of government as well as certain general values and principles upon which the citizens agree, including basic rights afforded to those who stand accused by the state. These rights are a crucial protection against the government’s far-reaching power.

Our constitution is so well-balanced that it should rarely be subject to change. Kentucky has a Victims’ Bill of Rights well-enshrined in statute. If it must be changed, it can be done through the process of enacting legislation and without a constitutional amendment. Marsy’s Law will potentially undermine the administration of justice in the Commonwealth of Kentucky and, for that reason, should be put aside while the targeted issues are taken up by the General Assembly.

-State Sen. John Schickel, R-Union, is a former law enforcement official who’s served Northern Kentucky in the General Assembly since 2009. Sen. Shickel is a former U.S. Marshal for the Eastern District of Kentucky under President George W. Bush and a retired local police officer and jail administrator. He also has a master’s degree in Public Administration from Northern Kentucky University and is a former justice studies instructor and former member of NKU’s curriculum advisory committee.