Analysis of Marsy’s Law in Florida: Notable Statutes and Their Impact

A Primer on Marsy’s Law

In November 2018, 63% of Florida voters approved Marsy’s Law, which amended the state constitution to afford protections and rights to crime victims. The measure’s sponsor, Henry "Hank" Asher, whose daughter Kate was murdered, proposed the measure to ensure that crime victims and their families are accorded rights throughout the criminal process from notification of a hearing through any parole hearing. In February 2019 , Florida lawmakers formally approved the measure. The law expanded rights for crime victims including: (1) the right not to be excluded from a court proceeding; (2) the right to confer with prosecutors; (3) the right to be heard at proceedings and hearings; (4) the right to be present at a court proceeding; and (5) the right to receive certain information. While the legislature passed implementation guidelines in April 2019, civil litigators will need to assess the viability of Marsy’s Law claims for their clients.

Marsy’s Law Enacted in Florida

Marsy’s Law in Florida is enshrined in the Florida Constitution. In 2017, the law was proposed as a constitutional amendment (Amendment 6) with the title "Rights of Crime Victims; Bail; Right to Competitive Energy Market." Sponsored by Lawrence G. Wiggins, a Naples personal injury attorney, Amendment 6 garnered the required support from the Florida House of Representatives in April 2017 before passing the Florida Senate in the following month. Amendment 6 then appeared on the Nov. 6, 2018, ballot as Amendment 6, the "Rights of Crime Victors; Bail; Right to Competitive Energy Market." Voters approved the amendment by a vote of 62.87 percent for and 37.13 percent against.
The approved amendment revised the Florida Constitution to recognize crime victims’ rights. These rights include victims’ rights to due process and an amendment to the Florida Bill of Rights requiring the state to guarantee victims certain fundamental rights that are "enforceable in a court of law." This state constitutional amendment amended three sections of the Florida Constitution related to victims’ rights. These are Article 1, Sections 16, 21, and 22 of the Florida Constitution.

How Marsy’s Law Works in Florida

Marsy’s Law in Florida: Key Statutes and Application of the Law – Part 3 of 4
Marsy’s Law codified in the Florida Constitution became effective for all crimes in Florida in January 2019. Based on a provision in the law, it seems to apply retroactively to ALL criminal cases in Florida even those where a conviction has already been entered.
Marsy’s Law provides for very specific victim rights including notice of arrest and scheduled hearings, presence at all court hearings, and opportunity to be heard. The law also provides that a victim has the right to request a speedy trial and outcome.
Below are the main provisions of Marsy’s Law as codified in Title XIV of the Florida Constitution, Article I, Section 16 (entitled "Crime Victims").
Section 16. Rights of victims of crime—
(a) To be provided with a secure waiting area during court proceedings that minimizes courtroom interactions between the victim, the victim’s family, and the accused.
(b) To be accompanied by an advocate or other support person during any deposition or court proceeding and, if requested, to be informed of that person’s role.
(c) To confer with the prosecutor with regards to whether the victim or victim’s family should have the opportunity to be heard at disposition and sentencing, and to convey the views and concerns of the victim and the victim’s family regarding the disposition and sentencing.
(d) To provide information to be considered by the sentencing court prior to a plea agreement or sentencing by the court.
(e) To submit a statement to the parole board for consideration prior to the parole of the accused.
(f) To receive restitution as provided by law.
(g) To be informed when the accused is released or discharged from prison, jail, or juvenile facility.
(h) To be informed of procedures to enforce the rights enumerated herein.
(a) Crime victims or, if the victim is a minor or an adult who lacks legal capacity, a family member or guardian of the victim, upon timely request, the right to

• (1) protection from intimidation within the judicial process;
• (2) reasonable protection from the accused and persons acting on behalf of the accused;
• (3) timely notification of any release or escape of the accused;
• (4) timely notification of all court proceedings involving the criminal case;
• (5) provision of appropriate measures regarding the presence of the victim’s family members, friends, or authorized representatives at court proceedings; and
• (6) confer with the prosecuting attorney with respect to the resolution of the case, including plea negotiations.

Implications

Florida’s Amendment 6, known as "Marsy’s Law," adds an unprecedented layer of requirements to the criminal justice process. It lays out a number of new rights and protections for victims of crime, and requires law enforcement officers, prosecutors, and judges to take those rights into account every step of the way. If the Republican-controlled legislature sees fit to enact bills that "provide the most comprehensive, fair, and effective implementation" of these amendments, the practical effects could be enormous. Again, under the new legal framework, the state constitution will:
The legislative bill summary and the fiscal note issued in advance of the proposed legislation set out a list of potential changes and costs that accompaniments to its passage "stand alone." We have summarized the most important of them here:

• A list of motion deadlines, including 10 days for the defendant to object after the notice is sent, as well as 15 days to respond to the court’s order if the victim’s attorney objects.
• The right for victims to be accompanied by a person of their choice at any proceeding involving a defendant and to allow such person to address the court.
• The addition of language that would permit a defense attorney to seek a protective order preventing disclosure of private, victim-sensitive information.
• The right for victims to have their places of employment and residence withheld from public disclosure.

These are just some of the ways the proposed legislation envisions the implementation of the amendments to the Florida Constitution that will have an immediate, practical impact on the disposition of criminal cases from the day they are charged until their conclusion — from the filing of charging documents, to the selection of jurors, to the recording and transcription of depositions and hearings, to the trial itself, as well as granting discovery motions to protect the confidentiality of certain information and costs associated with such a procedure. Even with the proposed legal and practical applications of Amendment 6 to the pretrial phase of criminal cases, it is important to note that there are some areas in which the law is unclear. For example, it remains to be determined what effect Amendment 6 has on plea agreements and whether a defendant may be forced to take his or her case to trial — with all the attendant consequences of a jury verdict, namely, a life-changing conviction, improved sentencing guidelines and a probable prison term for the defendant. Further, it was reported this past week that another bill proposed in the Florida legislature would allow the release of victim names and accommodations made for the victim. Those issues have yet to be addressed in a Florida courtroom.

Contentious Areas

Marsy’s Law has received criticism from various quarters within Florida, especially in terms of its potential practical application. Questions have been raised about the implementation of the amendment as well as the constitutionality of certain provisions. The amendment had also faced challenges in court on grounds that its particulars were different from those previously put forth to voters in 2018, specifically regarding the amendment’s length. However, as there are a number of provisions within the amendment, the legal system simply applied certain parts of it while allowing others to fall by the wayside. Opponents of the amendment have argued that it has the potential to upend the criminal justice system. Specifically, they’ve claimed that it would virtually remove due process through judicial proceedings. It would also bar discovery to which the prosecution is entitled. And for defense attorneys, the potential loss of that right leads to the remote possibility of a trial not being fair and impartial. Brevard County state attorney Phil Archer has even called it "law-free zones" that "take away from a defendant the right to present a defense…." Put into that context, the law raises suspicions over the equality of the system. Some believe there may be a conflict between the victim’s rights and the defendant’s rights, thus potentially putting due process in jeopardy . That applies to many aspects of the criminal justice system, including speedy trial, conducting an investigation, access to witnesses, etc. According to Zachary Landau, the chair of the Florida Bar Criminal Law Section: "What we see here is really a failure to recognize that there already is a balance between victim and defendant rights. They are generally balanced in favor of the defendant." He adds later that there was "no reason why" the balance should shift. In addition, public defenders have also suggested that the amendment creates problems when it comes to victims’ rights versus the rights of the accused. There are concerns this would give the victims of crimes undue power over the prosecution of offenders. Such issues have also been fed by the fact the amendment allows victims to request the recusal of judges. In opposition, those who work within the criminal justice system have deemed such requests to be "unfair," with the charge that victims are "going to get their way at every turn." Some individuals have also cited practical concerns about the amendment. For example, the cost of printing a new jury questionnaire or roster carries an estimated $100,000 price tag. Moreover, for those in the state system, there are concerns this could lead to clerks handling more than 100,000 notifications annually, which will prove troublesome and costly. Other areas of contention include the cost of altering arrest forms, how constitutional amendments will appear on ballots, and what constitutes a fine.

Comparison to Other State Laws

Florida’s approach to Marsy’s Law shows both similarities and differences with other jurisdictions. For instance, while Florida’s law grants specific rights to both victims of generational crimes – murder, manslaughter, sexual battery, carjacking, etc. – and non-generational crimes – drug deals, burglaries, DUIs, etc. – other states like North Dakota, South Dakota and California only extend the enumerated rights to generational crimes. Florida is also unique in providing for the right to a speedy trial, as opposed to merely the right to appear and be heard at all critical stages of the judicial process. On the other hand, Florida is similar to most other jurisdictions in interpreting negative liberty as requiring the court to consider victims’ rights throughout the entire judicial process, from charging decisions through sentencing and parole.

Marsy’s Law’s Future in Florida

Future developments for Marsy’s Law in Florida are difficult to predict. In addition to ongoing litigation over the constitutionality of the law as may be affected by the Supreme Court decision in Martin and Riggins, first-impression issues will arise. For example, courts may grapple with the appropriate remedies where a victim claims he or she was not afforded constitutional rights by a court or official. Can the victim sue the state under 42 U.S.C. sec. 1983? What is the standard for proving damages?
The statute has also sparked discussion about amending the state constitution to provide rights to the accused . Right now, the state Constitution provides only that "The accused shall enjoy the right to a speedy and public trial, by an impartial jury" in Article I, sec. 16. Some experts believe Marsy’s Law provides such rights, even though they were not broadly stated by the voters.
Much of the controversy over Marsy’s Law involves whether the Sunshine Amendment was passed legally, in violation of the Florida Constitution. Voter-approved amendments to the Florida Constitution require 60% of votes cast, and the Sunshine Amendment did not reach that level of support. The Supreme Court’s ruling in Martin and Riggins on this issue will have a long-term effect on the new version of Article I, sec. 16.