Normally when the legislature passes a law, it goes to the governor’s desk for a signature, but under Sections 256 and 257 of the Kentucky Constitution, the General Assembly has the authority to propose a constitutional amendment to be published and submitted to the people for ratification. If you’ve already voted this year and remembered to flip over your ballot, you saw an entire page of constitutional amendments.
Luckily this year, we have expanded voting options that give us some time to do our research on amendments, but it can still be hard to find information. Both amendments this year have to do with the legal system, so as an attorney and a person who reads a lot of bills for my political podcast, I’m here to offer a few thoughts.
Amendment 1 – Marsy’s Law
Amendment 1 is better known as “Marsy’s Law.” Marsy’s Law would create a new section of the Kentucky Constitution known as the Crime Victims Bill of Rights.
For the last month or so, many people have asked me, “Didn’t we already pass Marsy’s Law?” And the answer is yes, we did. In 2018, SB 3 was the bill known as Marsy’s Law. The legislature passed the bill easily, but because the bill involved amending our state constitution, it had to be submitted to the voters.
Before it was time to vote, the Kentucky Association of Criminal Defense Lawyers (KACDL) sued in Franklin Circuit Court to block the amendment. The KACDL argued that the ballot question was vague and did not present the substance of SB 3 in a way that informed voters of its contents. The Franklin Circuit Court agreed, and so did the Supreme Court of Kentucky. In fact, the Supreme Court held that Section 256 of the Kentucky Constitution “imposes a mandatory constitutional directive on the General Assembly to submit the amendment, in its entirety, to the electorate for a vote[.]”
Even though over 60 percent of voters voted for Marsy’s Law in 2018, the votes didn’t count since the amendment was voided by the Court, and because of this ruling, all amendments must now be published in their entirety.
The legislature wasted no time and passed a new version of Marsy’s Law in the 2020 session, SB 15. The current bill is the same as SB 3, except that it will include the full text of the amendment on the ballot, and it includes new language about the right to be heard in the consideration of a pardon or commutation. (I think we can thank Matt Bevin for this newly added language).
Problems with the “Marsy’s Law” amendment
A Bill of Rights for victims of crime sounds nice, so what’s the problem? Well, in my opinion, there are several.
1. We already have a Crime Victims Bill of Rights.
KRS 421.500-576 is an entire set of statutes designed to protect a victim’s rights, such as the right to notice of proceedings and the right to be heard. It’s even called the Crime Victims Bill of Rights. Marsy’s Law would make these rights constitutional. Constitutional rights are meant to protect the accused, as they are the ones whose life and liberty is at risk. We already have a set of statutes to protect victims and prosecutors already do most, if not all, of what Marsy’s Law seeks to solve.
2. It labels a person as a victim before anyone is convicted of a crime.
A person accused of a crime is supposed to be innocent until proven guilty beyond a reasonable doubt. This presumption of innocence comes from the Due Process Clauses contained in the Fifth and Fourteenth Amendments of the U.S. Constitution. Marsy’s Law would designate the complaining witness as a victim from the commencement of a case, which presumes that the accused is guilty. Not every case has a clear victim and a clear bad actor. There are “he said, she said” cases, there are car accidents where more than one party may be at fault, there are self defense cases, and so many other gray areas. Marsy’s Law would mean that the person who gets to the courthouse first is the victim, which turns due process on its head.
3. Marsy’s Law is vague and ambiguous.
Marsy’s Law is a model amendment that has been passed in several other states, yet it is not tailored to any one state’s current laws.
For example, it includes a victim’s right to privacy, but what exactly does that mean? Does this mean information about a case can be withheld from the public? That could seemingly violate the accused’s constitutional right to a public trial or their right to confront witnesses against them. In one case, a police officer involved in a case was allowed to claim victim status under Marsy’s Law and withheld information.
It also contains language that a court must act promptly in a victim’s request to assert rights under Marsy’s Law. Does this trump the discovery process or the accused’s right to effective counsel if defense counsel needs more time to investigate and prepare for trial? If your loved one was accused of a crime, wouldn’t you want to see all of the evidence? And wouldn’t you want their attorney to thoroughly investigate and have time to prepare a defense?
Additionally, Marsy’s Law states that victims have the right to counsel but it provides no funding or mechanism for the state to appoint them an attorney. Does this mean that a wealthy victim can hire a private attorney, but a low income victim is out of luck? No one knows how any of this will work in practice or how courts will interpret the amendment’s provisions.
4. Marsy’s Law would alter the role of the prosecutor.
Prosecutors are elected to represent the community’s interests. The Crime Victims Bills of Rights contained in KRS Chapter 421 requires prosecutors to notify victims of proceedings, give them the opportunity to make a victim’s impact statement, and consult with them regarding disposition, among other things. If victims hire their own attorneys, this prevents the prosecutor from talking with victims freely and may make it difficult for victim advocates to work with them as well. It would mean that prosecutors would be working for one person’s individual interests, and not in the best interest of the community, justice, or fairness.
True victims need resources and support, and Marsy’s Law provides neither of those. It doesn’t create new programs and it doesn’t allocate funds. It only offers empty words and I will be voting “no” on Amendment 1.
Amendment 2 – Terms and qualifications for judges
Amendment 2 is about judicial terms and qualifications for district court judges and Commonwealth’s attorneys, but it’s really two ideals in one amendment.
District court judges deal with misdemeanor cases, small claims, probate cases, evictions, criminal arraignments, mental inquest warrants, and juvenile court cases. Even though the stakes are often lower than in circuit court, where judges hear felony cases and deal with civil suits involving larger sums of money, district court judges make decisions daily that affect people’s everyday lives and their liberties.
Currently, to run for district court judge, an attorney must have two years experience practicing law. If elected, they serve a four-year term. Amendment 2 would increase the experience requirement from two to eight years, but also increase their term from four years to eight years.
Commonwealth’s attorneys are elected prosecutors who deal with felony cases. They are currently elected for six-year terms. Amendment 2 would increase their term from six years to eight years.
I think increasing the practice requirement for judges is a good idea. It’s great to have experienced judges on the bench. I do not, however, support increasing terms to eight years. This leaves voters with little recourse to hold judges and prosecutors accountable for actions that affect a lot of people’s lives. It’s unfortunate that these changes are lumped into one amendment and the only reason I can see for putting them together is gatekeeping. So one must decide, which would you rather have: more experienced judges or more accountability?
I choose accountability. Eight years is even longer than a U.S. Senate term. If a judge or prosecutor has consistently been in the public eye for controversial decisions or because they have treated litigants poorly (which is usually what makes the news), I want the chance to vote them out.
And while I like the idea of increasing the practice requirement, I don’t think more practice always equals more qualifying experience. An attorney who has been practicing for five years in district court may be better prepared to be a district court judge than an attorney who worked as general counsel for a politician for a decade or an attorney who has only practiced federal tax law for 20 years. Given my options, I will take accountability over years of practice and will be voting “no” on Amendment 2.
Closing thoughts
It has always been difficult to find information about judicial elections, down ballot races, and constitutional amendments. My best advice for constitutional amendments is to read them in their entirety before going to the voting booth, check LRC to see which legislators supported them, read op-eds by people who may be affected by them, and ask your attorney friends what the application and interpretation of amendments may actually look like in practice.
And as your attorney friend, I don’t believe either of these amendments will be good for Kentucky.
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