The ACLU Goes Hunting in Montana


ACRU Staff


June 26, 2017

This column by ACRU Senior Fellow Robert Knight was published June 24, 2017 by The Washington Times.


In a 1981 speech before the California Peace Officers Assn., former Attorney General Ed Meese referred to the American Civil Liberties Union (ACLU) as a “criminals’ lobby.”

Lately, the American Criminal Liberties Union has been working harder than ever to justify its pejorative nickname. This week, the ACLU filed a lawsuit against a popular new crime victims’ rights measure in Montana known as Marsy’s Law.

The provision, which takes effect on July 1, was approved on Nov. 8, 2016 by two-thirds (66 percent) of Montana voters. It strengthens existing victim legal protections and adds a 19-item “victims’ bill of rights” section to the state constitution, including:

“The right to participate in criminal and juvenile justice proceedings, to be notified of major developments in the criminal case, to be notified of changes to the offender’s custodial status, to be present at court proceedings and provide input to the prosecutor before a plea agreement is finalized, and to be heard at plea or sentencing proceedings, or any process that may result in the offender’s release.”

It also “guarantees crime victims’ rights to restitution, privacy, to confer with the prosecuting attorney, and to be informed of their rights.”

The ACLU says the new section is unconstitutional because it involves more than one issue, will hamstring defense attorneys, cost too much to enforce, have unforeseen consequences, and generally be a spike stuck into the wheel of justice.

Supporters (a landslide majority of Montanans) say criminal law has swung too far toward favoring criminal defendants and that more protections for victims and their families are long overdue.

Montana is one of several states in which voters have adopted a version of Marsy’s Law, which originated in California.

On Nov. 30, 1983, Marsalee “Marsy” Nicholas, a student at the University of California Santa Barbara, was stalked and murdered by her ex-boyfriend. A week after she was murdered, Marsy’s mother and brother, Henry T. Nicholas, went to visit her grave and then walked into a grocery store, where, shockingly, they ran into the murderer.

“Because the courts and law enforcement were under no obligation to keep them informed, the family had no idea that he had been released on bail or that he would remain free until his conviction,” the Marsy’s Law for All website relates. “After the murderer was convicted and was serving his sentence, Dr. Nicholas and his mother were required to attend numerous parole hearings in order to keep Marsy’s murderer in jail. This traumatic ‘reliving’ of the murder at parole hearings caused Dr. Nicholas’ mother to have a heart attack.”

Determined to protect other victims’ families from such ordeals, Henry Nicholas, co-founder of the Fortune 500 semiconductor company Broadcom (now Broadcom Limited), organized a victims’ rights group, Marsy’s Law: Justice for Crime Victims, which successfully lobbied for a state constitutional amendment.

Opposed by The New York Times, The Los Angeles Times and 26 other California editorial boards (with the notable exception of the Eureka Reporter), Proposition 9, “The Victims’ Rights and Protections Act” passed 54 percent to 46 percent in November 2008.

Mr. Nicholas, who bankrolled the $2.4-million Montana campaign, also promoted the law in other states, such as Illinois, where it passed with 78 percent approval in 2014, and in North Dakota with 62 percent and South Dakota with 60 percent in 2016.

In a press release, Caitlin Borgmann, ACLU of Montana executive director, said, “The ACLU fully supports the rigorous enforcement of existing legal protections for victims, but CI-116’s expansive redefinition of ‘victim’ gives new rights to family, friends, corporations and other nonhuman entities at the expense of constitutionally enshrined rights.”

One of the petitioners in the suit, Adrian Miller, described in the ACLU release as a victims’ rights advocate, played the hard-case card:

“Sometimes a victim wants privacy from her family, for example when a rape victim is deciding whether to obtain an abortion, or when family members pressure an abused spouse to drop charges and return home.”

However, this is not an issue of privacy. It is about protecting the rights of victims and their families to participate in the judicial process. The ACLU has always advocated for the rights of criminals over their victims and Marsy’s Law will help level that playing field.

Chuck Denowh, state director of the Marsy’s Law campaign, told the Great Falls Tribune that he was confident the law would withstand legal challenges.

With regard to the ACLU lawsuit, he said, “It’s pretty simple. Some people fundamentally don’t think that crime victims should have constitutional rights like offenders do.”



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