Implementing bill for Marsy’s Law goes nowhere in Legislature
Concerns raised about consistently carrying out the victims’ rights constitutional amendment
While speakers disagreed about the need for and impacts from the amendment, there was unanimity that the amendment would require a law from the Legislature specifying how parts of it are carried out, even though the amendment specified it was “self implementing.”
No such bill passed.
As announced at the January meeting, Sen. Lauren Book filed SB 1426, a 43-page bill as an operating guide to the amendment. Among other things, the amendment requires that victims be notified at every stage of a prosecution.
The bill went nowhere. It was never heard in committee in the upper chamber and a counterpart bill was not introduced in the House.
So state attorneys, public defenders, police, clerks of court, victim rights agencies, and others must now comply with the law without any additional legislative guidance. Mostly, they are working with the amendment, although some problems have surfaced.
“The reality of what has been developing is that most circuits and counties across the state have been figuring out what to do locally and finding local solutions that they are comfortable with,” said Eighth Circuit State Attorney Bill Cervone, speaking while the session was still underway. “It does not seem to be as drastic a problem as thought at one point.”
But he and others said some guidance is still needed.
“As an example, victims need to be notified throughout the process,” said 15th Circuit State Attorney Dave Aronberg. “If someone is released [on bail or otherwise] before first appearance, whose job is it to notify the victim? We [state attorneys] don’t even have the case before first appearance. Is it the police’s job? Is it our job?”
He added that most state attorneys already had been complying with the existing statute predating the amendment, so following the amendment — which is more extensive in some areas — may have been less daunting than some expected.
Paul Hawkes, who represents Marsy’s Law for Florida, the group that promoted the amendment to voters, said implementing legislation will clear up ambiguities, including making sure the judge — who can’t independently contact the victim — knows whether the victim has requested notification about the case’s progress and has been informed about any particular court proceeding.
“It would be nice to have a set of rules that everybody has to play by,” Hawkes said. “There needs to be some clarity and uniformity in how these things take place, Not just because victims need to know; judges need to know that the victim has requested to be notified. . . and is it in the court file that the victim was notified [about a hearing] and isn’t there?”
He cited a hypothetical example about how even an apparent innocuous case may be important to the victim.
“Imagine someone smashes your mailbox,” Hawkes said. “You’re probably not that concerned [about notification].” But what if, Hawkes added, the culprit is older, “likes your 16-year-old daughter” and is a potential stalker, “then you’re more concerned.”
He said he’s heard of at least a couple cases where victims have failed to be notified and have taken steps, including lack of notification about a plea bargain and the hearing where it was ratified, and another where the victim claimed inadequate notification by the state attorney’s office (which disagreed).
Book attributed the failure to consider her bill to the crush of other legislative business, including working on legislative bills related to two other amendments, one which restored voting rights to felons and the other which addressed retroactive application of reductions in criminal penalties.
“As opposed to legislative proposals, constitutional amendments do not have the benefit of having been previously debated in each chamber and consensus developed. My fellow lawmakers may not have felt they had sufficient time and understanding of the issue to act,” she said.
“Marsy’s Law for Florida is a dramatic change from the status quo and the major changes it requires are often hard to enact,” Book added. “Tackling the significant changes that need to be made may seem overwhelming to the Legislature and criminal justice system participants involved.”
As for next year, “It’s too early to discuss potential legislation for next session, but I, along with victim advocates across the state, will continue our efforts to make Florida a national leader in respecting victims’ rights,” she said.
Meanwhile those who must comply with the amendment or are affected by it are adjusting.
Savannah Sullivan, spokesperson for the Florida Court Clerk & Comptrollers, said the group — which handles court records that are affected by the confidential requirements of Marsy’s Law, among other concerns — is working “to determine a best practice that we can implement statewide. We’re still working on that.”
Kylie Mason, press secretary for Attorney General Ashley Moody, said Moody’s office has not receive formal request for opinions on carrying out Marsy’s Law. The AG’s office has, though, prepared a pamphlet listing the rights that crime victims have under the law and the extra rights they can get by specific request, including notification and attendance at all public proceedings in the case, clemency and expungement proceedings, and notice when the defendant is released from prison or escapes.
Carol LoCicero, board chair of the First Amendment Foundation of Florida and a Tampa attorney who represented several media organizations, said implementing legislation may be needed because there is no uniformity in the way victim information is being released to the press.
“Law enforcement agencies are applying Marsy’s Law in a variety of different ways, which makes it difficult,” she said.
“The very kind of routine information that we used to get about the basics of a crime so you could report. . . so neighbors would understand what had happened in their neighborhoods and neighborhood businesses. . . you’re not getting a lot of that now,” LoCicero said. “If you think through difference scenarios, you kind of see how Marsy’s law is causing problems that don’t make common sense. A lot of time the victim information gets out really quickly — we live in a world full of social media — but news agencies like to get confirmation form official sources. . . and you can’t get that. Sometimes the families come out and acknowledge their loved one was killed or harmed, sometimes the family is talking about it, but law enforcement hasn’t given you a name.”
LoCicero said the interested parties working together should be able to come up with sensible implementing legislation, which she said is a matter of public safety as well as information.
“If you’re talking about protecting people, I want to know my next door neighbor was the victim of a violent crime. That’s a fundamental issue that people ought to know not only to take care of myself, but to take care of my neighbor,” she said. “The various stakeholders. . . maybe we could come up with something that makes sense. I’m not sure with all of the protections the state already had [in statutes], why this provision was part of a constitutional amendment.”