HJR 8, the “Marsy’s Law for Idaho” proposed constitutional amendment on victim’s rights, has failed in the House by falling short of the required two-thirds, or 47 votes to pass – the vote was 42-28 in favor of it, and came after more than an hour and a half of heartfelt debate.
Here’s how the vote broke down:
Voting in favor: Reps. Amador, Anderson, Anderst, Armstrong, Bedke, Bell, Blanksma, Boyle, Burtenshaw, Chaney, Cheatham, Collins, Crane, DeMordaunt, Dixon, Erpelding, Gannon(5), Gestrin, Harris, Holtzclaw, Kauffman, Kerby, Kloc, Loertscher, Malek, McDonald, Mendive, Miller, Monks, Moyle, Packer, Palmer, Raybould, Redman, Smith, Thompson, Toone, VanOrden, VanderWoude, Wagoner, Youngblood and Zollinger.
Voting against: Reps. Barbieri, Chew, Clow, Dayley, Ehardt, Gannon(17), Gibbs, Giddings, Hanks, Hartgen, Horman, King, Kingsley, Luker, Manwaring, McCrostie, Moon, Nate, Perry, Rubel, Scott, Shepherd, Stevenson, Syme, Troy, Wintrow, Wood and Zito.
Rep. Brent Crane, R-Nampa, the bill’s lead sponsor in the House, noted that Idahoans enacted a victims rights amendment to the state Constitution in 1994. “Today what we’re asking to do is to update those rights,” he said.
Rep. Lynn Luker, R-Boise, said, “There is a lot of good intention and well meaning behind this bill. We all want to help victims.” But he said he believed the measure would dilute the assistance available now to victims of serious crime in Idaho, by expanding the definition of a crime victim.
“There’s also another concern,” Luker told the House, “and that is the tremendous amount of money that has been poured into this campaign by the sponsor, who is a billionaire from California and has gone from state to state … trying to pass these types of laws. I’m sure that it is well-motivated and well-intended, because of a loss in his life. But we’re here, we’re in Idaho, we’re in the Idaho Legislature … and outside money shouldn’t dictate what we do.”
Marsy’s Law is the name for a California constitutional amendment enacted in 2008, named for a woman who was stalked and killed by her ex-boyfriend in 1983. A week later, the victim’s brother and mother, after visiting her grave, were confronted by the accused murderer in a grocery store; they hadn’t been notified that he’d been released on bail. That prompted the brother, Henry Nicholas, to form a foundation for victims rights and push for Marsy’s Law and similar provisions in other states. Illinois, Montana, North Dakota and South Dakota are among states that have since adopted similar amendments.
Idaho’s existing constitutional provision, Article I, Section 22, declares that victims of crime in Idaho have a series of rights, from the right “to be treated with fairness, respect, dignity and privacy throughout the criminal justice process” to rights to prior notification of criminal proceedings, to be present at and heard upon request at sentencing or release hearings, to refuse contact with the defendant or the defendant’s agent unless authorized by law, and to read pre-sentence reports.
The proposed amendment would expand that to require “reasonable and timely” notification to victims of all proceedings and of news that the offender has escaped or absconded; an opportunity both to be present and to be heard upon request at all proceedings; expanded restitution guarantees; expanded protection from contact with victims or their agents, even when otherwise legally required; and a guarantee of “reasonable and timely” access to pre-sentence reports. It also allows victims to assert their rights in court, and requires courts to respond “promptly.”
A study commissioned by backers of the bill estimated that implementing the change would cost the state of Idaho $553,000 a year. To amend the Idaho Constitution, the measure needed two-thirds support in both the House and the Senate, plus majority support from voters at the next general election. An earlier version of it passed the Senate unanimously last year, but died in a House committee.
Rep. Heather Scott, R-Blanchard, told the House, “Marsy’s Law is not an Idaho solution. It’s a billionaire from California’s solution to put new constitutional language into our Idaho Constitution. And as we know, this is a national campaign. The money that’s being pumped into these states is astronomical.” She said she objected to “bullying from another out-of-state lobbying group,” drawing an objection from Rep. Stephen Hartgen, R-Twin Falls, who said she was attacking other lawmakers. Scott said, “I don’t appreciate being pressured or intimidated into a vote that I feel is wrong. … There’s more to this than we are seeing. I can’t imagine one person in this room does not want to help a victim.”
Rep. Bryan Zollinger, R-Idaho Falls, spoke in favor of the measure. “I’ve gone back and forth,” he said. “These rights are already here – the language is currently in the Constitution already. This is not a great departure. … I think what this resolution does is actually clarify things.”
Rep. Fred Wood, R-Burley, said, “There is no court in the state of Idaho, there is no federal court, that has ever found that Idaho’s Constitution is insufficient or deficient with respect to crime victims rights. They’ve never ruled that, no court has ever said anything about that. So if we don’t have those kinds of deficiencies, doesn’t just simple common sense ask: Why are we going down the road of amending the Constitution? … We don’t need someone from California to tell us that we have a deficiency,” he said. “We can figure that out in Idaho.”
Rep. Randy Armstrong, R-Inkom, said, “It’s been said that there’s been no victims rights abuse in the state. I was in the committee hearing. … Last year they had person after person who expressed their concern because their rights were being ignored in this whole process. I went to several meetings this summer where they had victims there, and every one of their rights as a victim were ignored by the court. … People would be outraged that we’re not protecting every possible right of the defendants, and yet we seem to be so quick to not be giving victims any kind of consideration.”
Rep. Luke Malek, R-Coeur d’Alene, said when he was a prosecutor, “We walked on eggshells around the 6th Amendment rights of those who are accused of crimes.” And yet, he said, “We are not doing everything for victims that we could be doing. This sets a new floor, not a ceiling.” He said when he was a prosecutor, the idea of victims having rights wasn’t part of the culture or vocabulary. “I was fully invested in making sure we could do everything we could for crime victims,” he told the House. “But the reality is that if we put this into the Constitution, we will be doing a great service to victims of crime in Idaho.”
Rep. Patrick McDonald, R-Boise, said his 43-year law enforcement career, “I never heard the expression of concern for the victim that I have for the perpetrator or the alleged perpetrator of the crime. … I just feel that the victim needs to have some standing here, just like the perpetrator.”
Luker, debating for the second time, said, “They’re not really the rights of criminals – they’re the rights of the accused. You can just ask the Bundys about that. We have the rights in the 6th Amendment because of government power. … We have those protections to protect us from the government, not to dispense rights from the government.” He added, “We have a robust protection in the law that’s not actually being followed, and putting it in the Constitution will not make it better – it will actually make it worse.”
Crane, in his closing debate, said, “The criminal’s rights are protected in the Constitution, but if your rights as a victim are below that in statute, you don’t have equal standing – you’re not on the playing field.” He shared a personal story, of how, about eight years ago, his wife saw a neighbor across the street exposing himself just as neighborhood school students were getting off a nearby school bus. She grabbed a video camera and documented it, then called the police. “From that day forward, my family has been in the criminal justice system,” Crane said. “So I wanted to know when this guy got out. And believe it or not, three months ago, you know what arrived in the mail? Notice that this guy got out.” Crane said he has young children. “And I want to know when this creep is out – I want to know when he’s crawling around Nampa again.”
“Victims never ask to be injected into the criminal justice system,” he said. “Most of the time, they’re there against their own will. That was the case with my family.”