Unintended consequences of new crime victims’ bill of rights

The Sioux Falls Police Department has refused to release the location of certain criminal incidents, and the South Dakota Department of Public Safety has scrubbed from its website all state accident reports and has stopped releasing the names of fatal crash victims. A newspaper association chief recently called these developments “a blow to the … right to know.” But what’s driving them?

The so-called Marsy’s Law.

It passed Nov. 8 as an amendment to the South Dakota constitution, effectively creating a crime victims’ bill of rights. Under its provisions, according to the state attorney general, a victim of a crime is entitled to “protection from harassment or abuse; the right to privacy; timely notice of all trial, sentence, and post-judgment proceedings including pardon or parole; the right to confer with the…government [attorney]; and the opportunity to provide input during all phases of the criminal justice process.”

The amendment also includes a provision entitling a victim to “the right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records.”

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That’s the reason the Sioux Falls police and the South Dakota public safety department have been withholding information related to crime locations, accidents, and crash victims. As the city police chief Matt Burns told the Argus Leader last week, the state public records law requires the release of crime-related information, but Marsy’s Law takes precedence. “Our job is to look at the new [law] and where the conflicts are,” he told reporter John Hult, “because constitutional amendments trump state law.”

So far, the police and public safety department have tried to resolve that conflict by withholding information, out of fear that it “could be used to locate or harass the victim or the victim’s family.” The police, for example, are identifying crime locations by zone rather than address–by stating that a crime occurred in one of 17 beats. That means, as Hult reported, “Addresses of all criminal incidents involving victims [are] stripped from both the public call logs and the media call logs used at the daily briefings.”

Questioned about that approach, Burns told the Argus Leader that he has “an obligation to uphold the law,” and Dave Bordewyk, general manager of the South Dakota Newspaper Association, said that “understandably” the police were “erring the side of caution.”

Meanwhile, Jason Glodt, the amendment’s sponsor, has said Marsy’s Law doesn’t actually require government agencies to withhold information as a precaution. “[The law] gives victims the right to prevent information from being released that can be used to locate or harass them,” Glodt told the Argus Leader, “but the victim has to take action to invoke their right to such privacy.”

I agree.

The amendment includes a provision that states: “The victim, the retained attorney of the victim, a lawful representative of the victim, or the attorney for the government, upon request of the victim, may assert and seek enforcement of the rights enumerated in this section” (emphasis added). 

That means the victim’s rights under the amendment, including “the right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family,” must be invoked to be exercised. And, thus, law-enforcement agencies are not obliged to withhold information as a precaution. The South Dakota attorney general, Marty Jackley, reached the same conclusion Monday, in a written opinion. So it would be lawful, generally, for the government to release information related to crime locations, accidents, and crash victims.

Burns, the police chief, said his department is reconsidering its withholding in light of the attorney general’s opinion, and a spokesman for the public safety department said the same. Jackley, for his part, has created a 25-member panel to study the law and its implications. 

Notably, South Dakota isn’t alone. Illinois, North Dakota, and Montana have passed versions of a Marsy’s Law, and efforts are underway to pass one in Kentucky, Georgia, and Nevada. California was the first to pass one, in 2008, with the support of Henry T. Nicholas, the billionaire cofounder of Broadcom, the semiconductor company. Nicholas’s sister, killed by her ex-boyfriend in 1983, is the law’s namesake. Shortly after her murder, Nicholas entered a grocery store and saw the ex-boyfriend, who, unbeknownst to him, had been released on bail. Fast forward a couple of decades, and his vision in California was to create a bill of rights to ensure that the criminal justice system treated with respect crime victims and their families. That’s also his vision for the pending bills, which he’s financially supporting.

(It’s worth mentioning that Nicholas has a colorful biography.)

North Dakota and Montana passed their Marsy’s Law measures Nov. 8, too, and North Dakota’s became effective Dec. 8—while there’s an ongoing dispute about the effective date of Montana’s. In any case, as the Argus Leader reported this week, officials in both states expect to face the same problems that South Dakota is facing. For example, the deputy chief of the Fargo police expressed concern recently about his department’s ability to release information like victim names and crime locations. “Our open records law,” he said, “is now in conflict with what the constitution has.”

I disagree–for the same reason the South Dakota withholding is unnecessary. The North Dakota law, like the one in South Dakota, includes the phrase “upon request of the victim,” so government agencies are not obliged to withhold information as a precaution. The Montana measure includes similar language. But what about the California and Illinois measures that have been on the books for a while? Why haven’t they made headlines regarding access to information? 

Well, the California law focuses on “disclosure of confidential information or records” (emphasis added), and the Illinois law lacks an analogous provision. So those measures, on their face and as applied, don’t imperil access to public information in the same way.

Now, the main threat in South Dakota–and perhaps North Dakota and Montana, although their interpretation of these issues deserves a fuller airing–seems to be a misunderstanding of the law. To read the South Dakota law properly is to understand that government agencies may, generally, release crime-related information without worrying about Marsy’s Law liability.

That said, there’s the separate but related problem of a victim actually invoking and exercising his/her “right to prevent the disclosure” of certain information, and that’s problematic unto itself. Hult, of the Argus Leader, put it well when he wrote: “If a victim opts in, does that mean their names and addresses would need to be scrubbed from criminal complaints and public affidavits? Victims testify in open court, under oath, using their names.”

That would be absurd and certainly, as the newspaper association chief put it, a blow to the right to know. But it’s possible because of the amendment’s plain language, a possibility that makes it critical for journalists to scrutinize these measures to evaluate their implications for the rights of access to information that enable the press and public to monitor effectively the criminal-justice system.

Photo by Ariane Middel, via Flickr 

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Jonathan Peters is CJR’s press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.