For the first time since 2012, Kentuckians will vote in a referendum to amend the state Constitution.
Voters will decide on Tuesday whether or not to approve Marsy’s Law, which would give crime victims the same rights afforded to the accused, including a voice in the judicial process.
Some opponents say the referendum is unnecessary and could create unintended consequences.
One Monroe County woman, Teresa Huber, is a solid 'yes' vote in support of Marsy's Law.
“I got married on August 9, 2008. Here's a picture of us together," Huber showed WKU Public Radio. "I was super happy, and Granny, she helped with the wedding that day."
Huber looks through wedding pictures at her home in Gamaliel, pictures of the good times she shared with her grandmother Clarene Adams.
All she has now are the memories. Huber lost her grandmother to a violent crime on April 6, 2010.
A Violent Act Against an Innocent Woman
“I step in the back door. She was laying on the floor face down. At the same time, I heard a thump and there was a mirror on the bedroom door, and I seen a gentleman standing through the mirror," recalled Huber. "I backed out of the house, ran to my car, and called 911.”
A convicted felon and a son of a next door neighbor raped and strangled the 78-year-old Adams inside her home during a burglary. Following his arrest and confession, Huber found herself navigating the justice system.
“I had never been in a court system ever," she said. "It was scary.”
Kentucky is one of 16 states without constitutional protections for crime victims. The accused and convicted have many rights codified in the state Constitution, but crime victims have only statutory protections.
The group Marsy’s Law for Kentucky wants to amend the state constitution to include a crime victims bill of rights that would give victims the same protections that defendants have, such as the right to be included in all court hearings.
“When I talk to people out in the state about Marsy’s Law and why it’s important, that’s the one that surprises people the most. They think that’s the one they already have," said State Senator Whitney Westerfield. "No one has that right. No victim has a right to be present at trial, but Marsy’s Law changes that.”
Westerfield, a Republican from Hopkinsville, sponsored the ballot measure in the General Assembly.
Teresa Huber says knowing all crime victims have a right to be present in court would mean a lot to her.
"I was one that was very persistent in calling the commonwealth’s attorney’s office weekly and asking when he was going to be in court," Huber said. "I hope Marsy’s Law is passed where the crime victims will know they’re allowed to go to every court proceeding and that they’re notified when their perpetrator is going to be in court.”
The commonwealth already has a Kentucky Crime Victims Bill of Rights by statute, which allows victims to participate in the criminal justice process, register to receive notifications on the accused's status, access a crime victim's compensation fund, and the right to submit a written victim impact statement to the court. Those provisions, however, don't go as far as Marsy's Law would, nor are they enshrined in the state Constitution. Westerfield says the status quo isn't sufficient.
“There are some statutory rights for crime victims on the books right now, but they only apply to victims of about 15 or so crimes. We’ve got over 400 felonies and criminal code violations on the books in Kentucky," explained Westerfield. "Most victims have no rights.”
The commonwealth already has several tools designed to keep crime victims informed as their case proceeds through the justice system.
Victim Information and Notification Everyday, or VINE, alerts victims when their perpetrator leaves prison or is moved from one detention facility to another. Kentucky Online Offender Lookup, or KOOL, allows victims to find out if their accused is in custody and where they are being held. Also, most county attorneys and commonwealth’s attorneys have victims advocates whose job is to keep crime victims informed on their case from start to finish.
Marsy’s Law would give crime victims additional protections such as the right to be notified of court proceedings and the right to speak at sentencing hearings. The victim’s safety would be considered in determining bail and setting conditions of release after arrest and conviction. Marsy’s Law would also gives victims and their family member an avenue to hold someone accountable if the current system fails them.
Kentuckians will vote on Marsy’s Law in a referendum on Nov. 6. The ballot question before voters is this: “Are you in favor of providing constitutional rights to the victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and have a voice in the judicial process?”
Concerns Over How Marsy's Law Impacts 'Innocent Until Proven Guilty'
While that language may seem appealing on the surface, some civil liberties and criminal rights groups say Marsy’s Law is troubling once you get into the details. David Ward president of the Kentucky Association of Criminal Defense Lawyers, which has lobbied against the initiative, says the fundamental problem with Marsy’s Law is that it undermines the presumption of innocence.
“Instead, we’re turning that on its head and saying before we even set bail for the accused, we’re going to identify a victim of the commission of the crime and that’s pretty dangerous," Ward told WKU Public Radio.
Marsy’s Law would also give victims standing in court, allowing them or their attorney to participate in a criminal case to enforce their rights. Ward says there are better ways to support crime victims, such as more funding for the justice system and holding accountable those who don’t uphold the Kentucky Crime Victims Bill of Rights. Ward says the state legislature, by approving the ballot question, only gave the appearance of action.
"Those of you victims who can afford this can hire your own lawyer and go into court, but we’re not spending any more money to make sure the law that’s already on the books, the Kentucky Crime Victims Bill of Rights, is actually enforced," remarked Ward. "Those of who can afford it, have at it. Those of you who can’t, then too bad.”
Ward is also concerned that the amendment broadly defines the term victim to also include spouses, parents, siblings, and children. He fears that if each victim has their own attorney engaged in every step from setting bail to final sentencing, Marsy’s Law will slow the resolution of cases.
The American Civil Liberties Union has also raised concerns about the ambiguity of Marsy’s Law, which includes a constitutional right to privacy for victims. The ACLU says it’s impossible to know what that might encompass and whether it would prevent the release of names or crime reports to the public.
The Marsy’s Law campaign has spent millions of dollars trying to convince Kentuckians to vote in support of the referendum question that will appear on Tuesday’s ballot.
Where the Movement Began
Marsy’s Law is named for Marsy Nicholas, a California college student who was murdered in 1983 by her ex-boyfriend. Days after her death, her mother was confronted by Marsy’s accused murderer while at a grocery store. Marsy’s family had not been notified that he had been released on bail.
The initiative is funded by Henry Nicholas, a California billionaire who is Marsy’s brother. Nicholas is behind a national movement to amend state constitutions and ultimately, the U.S. Constitution, to include similar victims’ rights.
The campaign has enlisted the help of another well-known Californian, actor Kelsey Grammer whose father and sister were both murdered. In a TV ad airing in Kentucky, Grammer says he learned through a tabloid that his father’s killer was released from prison.
"When my father's killer was released, I found out in The National Enquirer and it seemed like a cruel joke," Grammer says in the ad. "In my sister's case, I have been allowed a voice in the parole hearings of her killers, but that's not always true in Kentucky. Marsy's Law for Kentucky gives crime victims and their families equal rights and a voice in the process."
The Kentucky Association of Criminal Defense Lawyers filed a lawsuit in August aimed at keeping Marsy’s Law off the ballot, but Franklin Circuit Judge Thomas Wingate ruled earlier this month that it was too late to remove the question. However, he said the wording of the question is vague and doesn’t explain how the law would affect the criminal justice system. Judge Wingate ruled that the results of the referendum would not be certified. The ruling is being appealed.
Will the Vote Ultimately Matter?
Votes from the Nov. 6 referendum will still be counted. If the amendment is approved by voters, the courts will ultimately decide if Kentucky crime victims will have their rights constitutionally protected.
The man who killed Teresa Huber’s grandmother is now serving life in prison with no chance of parole at the Kentucky State Reformatory in La Grange, but Huber says she still has a lot of ‘what ifs.’
“I always have a fear of him getting out," stated Huber. "He has actually caught another charge since he’s been in prison. Him and a correctional officer got into it and he was charged with another charge. If he don’t care to attack somebody in prison, what would he do if he escaped? So, I’m always a little nervous.”
The Monroe County mother of three wants assurance that the man who killed her grandmother is locked up for good. She says she also wants to maintain a voice in the case and wants other crime victims to have the same peace of mind.