The Pennsylvania Supreme Court on Tuesday struck down “Marsy’s Law,” a victims’ rights amendment that would have added a new provision to Article I of the Pennsylvania Constitution. The amendment includes provisions for the right to be notified about and present at proceedings against the perpetrator, the right to be involved in release and sentencing of the perpetrator, a right to be protected from the accused and a right to receive restitution.
Marsy’s Law, named after Marsalee Nicholas who was murdered by her ex-boyfriend in 1983, was chief among the ballot measures during the November 2019 elections in Pennsylvania. The model amendment defines the term “victim” as including both those directly affected by the crime and any “spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship.”
Pennsylvanians voted overwhelmingly in favor of the amendment in the November 2019 elections, with an unofficial vote count of approximately 1.8 million in favor to 600,000 against—i.e. 74 percent to 26 percent. However, two Pennsylvania civil rights groups, state chapters of the ACLU and the League of Women Voters (“the plaintiffs), had already petitioned Commonwealth Court in October to permanently enjoin Secretary of Commonwealth Kathy Boockvar from certifying the results of the elections as they relate to Marsy’s Law and invalidate any votes cast for or against the amendment.
The lawsuit claimed that the measure is unconstitutional because it combines too many changes to the state constitution and that each change must be considered separately. Marsy’s Law would have provided 15 new constitutional rights for crime victims. Among the most highlighted additions, a victim would have to be notified at key steps of a criminal case and be allowed to provide input. If a victim or a victim’s family were not notified of significant developments, they could petition courts.
The same month, Commonwealth Court Judge Ellen Ceisler, agreeing with the plaintiffs that the ballot question does not contain the actual text of the amendment and does not fairly and accurately inform the electorate of the issues and impact of the amendment, granted a preliminary injunction preventing the amendment from becoming effective.
Earlier this year, the Commonwealth Court invalidated all votes cast on Marsy’s law with Judge Ceisler explaining that the proposed amendment was unconstitutional because it encompassed multiple subjects, violating Article XI, § 1 of the Pennsylvania Constitution, which provides, “[w]hen two or more amendments shall be submitted they shall be voted upon separately.” Pennsylvania courts have interpreted this provision to mean that the electorate should be able to vote “yes” to the provisions they approve and “no” to the provisions they oppose. Stating that the proposed amendment did not satisfy this constitutional requirement, the court ordered Boockvar not to tabulate or certify any of the votes.
The Pennsylvania Supreme Court in a 6-1 decision Tuesday affirmed the Commonwealth Court’s judgment stating:
the Victim’s Rights Amendment was, in actuality, a collection of amendments which added a multiplicity of new rights to our Constitution, and, because those new rights were not interrelated in purpose and function, the manner in which it was presented to the voters denied them their right to consider and vote on each change separately, as Article XI, § 1 mandates…In our view, it is manifest that these separate new rights are not dependent on each other to be effective. To cite but a few examples, the right of a victim to restitution does not depend on the right of the victim to be informed of, and to participate in, parole proceedings. The right of a victim to be treated with respect for his or her privacy does not depend on the right of a victim to be heard in proceedings involving release, plea, sentencing, disposition, parole and pardon. In short, they are not functionally interrelated. Indeed, we can easily envision a voter supporting one or more of these rights without approving of all of them. Consequently, Article XI, § 1 required the voters to have been given the opportunity to vote separately on each of them
The author of the opinion, Justice Debra Todd, also elaborated on the implications of the amendment as it relates to the governor’s pardoning powers. Todd stated that the amendment restricts the governor from exercising his pardoning power “until and unless all individuals who meet these criteria are granted the right ‘to be heard,’ which conceivably includes the right to be heard by the Governor himself and/or the Board of Pardons,” whereas presently, the Governor may grant a pardon upon the written recommendation of a majority of the Board of Pardons unless the underlying criminal offense involves the death penalty or life imprisonment.
Justice Sallie Mundy dissented stating that the “changes in the proposed amendment are specifically and narrowly tailored to fulfill the singular common objective of establishing for victims of crime justice and due process in the criminal and juvenile justice systems, and do not substantively change any other existing provisions of the Constitution.”
Marsy’s Law is a national campaign that has been approved in at least 11 other states. Similar and identical laws have been challenged in other states, including Kentucky, where it was struck down on procedural grounds in June.