Wisconsin is eight months away from an April 2020 statewide referendum asking if voters want to amend the state constitution to include Marsy’s Law, a crime victim rights bill. In May, the state Senate and Assembly overwhelmingly voted to send Marsy’s Law to the ballot on a bipartisan vote.
Marsy’s Law for All is a nationwide movement spearheaded by Henry Nicholas III, the billionaire founder of tech firm Broadcom. He named his crusade in honor of his sister, Marsalee, who was shot and killed by an ex-boyfriend in 1983. His goal is to amend all 50 state constitutions and the U.S. Constitution.
On Thursday Nicholas reached a plea deal one year after he was arrested on felony drug trafficking charges in Las Vegas. It allows him to avoid any prison time, prompting outrage from some lawmakers and the public in Nevada.
What does this mean for Wisconsin?
The question in Wisconsin is what impact Nicholas’ legal and public relations troubles will have on the Marsy’s Law ‘vote yes’ campaign. Forbes reported that Nicholas spent $71.8 million across the six states where Marsy’s Law was on the ballot last November. Amending the constitution of Pennsylvania will be on the ballot in November, and Wisconsin’s initiative is scheduled for next spring.
The national organization put out a statement when Nicholas was arrested last year that read: “The allegations in the media should not interfere with Marsy’s Law, the victims’ rights movement started by Dr. Nicholas, that so many victims, advocates, law enforcement leaders, staff and volunteers are working to advance across the country.”
Nicholas was arrested last August in a Las Vegas hotel room where police found nearly 96 grams of methamphetamine, 4.24 grams of heroin, 15.13 grams of cocaine and 17.1 grams of psilocin, a psychedelic, according to the complaint.
What is not clear is the impact of Nicolas’ arrest and plea agreement on the funding in support of the Wisconsin referendum. A phone call and emails to Marsy’s Law for Wisconsin were not returned by publication time. An email reply to the organization’s address on the Wisconsin website stated, “Your message can’t be delivered because delivery to this address is restricted. [email protected]”
The most commonly used mechanism for amending the state constitution requires the state Senate and Assembly to pass the amendment twice, with precisely the same wording, in two consecutive sessions. It then must go on a statewide ballot in the next general election.
In Wisconsin, Marsy’s Law has passed both legislative hurdles, with the Senate voting 27-5 and the Assembly voting 82-15 in favor. Now it must win approval from voters in the April 2020 election. According to Ballotpedia, Marsy’s Law is currently the only statewide ballot measure certified for 2020.
Marsy’s Law debates
Beyond the controversy stemming from Nicholas’ arrest and past incidents, Marsy’s Law itself has been the subject of heated opinions.
Writing for the State Bar of Wisconsin’s Feb. 9, 2019 Inside Track newsletter, Donna Ginzl, an attorney with Anderson, O’Brien, Bertz, Skrenes & Golla in Stevens Point, described two opposing views on Marsy’s Law this way: “Supporters of the law argue that victims deserve the same rights as their attackers, and that ensuring such rights will not change the constitutional rights of the accused.
“Opponents of the law argue that…certain provisions of Marsy’s Law go too far, and infringe on the rights guaranteed to criminal defendants in the U.S. Constitution as well as the Wisconsin Constitution. In particular, opponents cite a provision in Marsy’s Law that permits victims “to refuse an interview, deposition, or other discovery requests made by the accused or any person acting on behalf of the accused.”
It is a complex issue. In Wisconsin, Marsy’s law has hundreds of supporters, including law enforcement, district attorneys, elected officials, service organizations and Attorney General Josh Kaul.
Teri Jendusa-Nicolai, a past state chairwoman for Marsy’s Law told her agonizing story of domestic violence in a letter in The Journal Times. “In 2004, I became a victim when I was kidnapped, beaten with a baseball bat, suffocated, dumped in a trash can and left to die in a frozen storage shed,” she wrote. “Despite narrowly surviving this brutal attack, too often I felt like I was the one on trial during the harrowing legal process that followed…I clearly saw the need to level the playing field between victims and the accused.”
The other side of the debate is a legal and constitutional concern. Sheboygan criminal defense attorney Casey Hoff, in a column, cited the presumption of innocence in U.S. law, and added, “there must be checks against the incredible powers of the government before it can strip a person of his or her freedom and liberty. The out-of-state campaign to enact “Marsy’s Law,” led by a California billionaire, is an attempt to amend the Wisconsin Constitution and make victim’s rights “equal” to the rights of the accused under the Constitution. This is a false equivalency.”
Crime victims’ rights in Wisconsin
Marsy’s Law would duplicate some protections already in state law. In 1980, Wisconsin was the first state in the nation to pass a Crime Victim Bill of Rights and three years later adopted the first Child and Witness Bill of Rights, according to a legislative document from the Office of Crime Victim Services at the Wisconsin Department of Justice. The state also passed a constitutional amendment in 1993 requiring victims be kept abreast of their cases, as well as “fair and dignified treatment of crime victims with respect for their privacy.”’
Proponents of Marsy’s Law say despite those duplications the law is needed because it has added protections that ensure victims’ rights equal those of the accused. Victims would have the right to be heard at plea, parole and revocation proceedings and attend all proceedings in their case. They could also refuse defense attorneys’ discovery, interview and deposition requests.
Next for Nicholas
As for Nicholas, he will not be required to attend drug court, which requires intensive treatment and drug testing. Instead the deal requires he participate in two drug counseling sessions a month, perform 250 hours of community service during the course of a year, and pay $500,000 to a drug treatment facility in Las Vegas.
Failure to comply will result in a finding of guilt on one count of possession, a probationary charge, meaning the two will avoid prison regardless of their compliance.
“They are paying their way out of jail,” one courthouse insider who asked not to be named told the Nevada Current.
Billy Vassiliadis of R&R Partners, the lobbyist for Marsy’s Law in Nevada, where it passed last November, told the Nevada Current that Nicholas’ legal problems could be an albatross as advocates seek to pass the ballot measure nationwide, but went on to say he doubted it would be a problem.
“I suppose it could be made to look that way, but it’s not about one person. If it is, it’s about victims like Marsy,” Vassiliadis said, adding it’s unlikely the public makes any connection between Nicholas and Marsy’s Law.
It appears Nicholas will continue as leader of the national group advocating for victims, even after his experience on the other side of the law. According to the Associated Press, Marsy’s Law for All, “praised what it called the ‘conclusion’ of Nicholas’ criminal case, saying in a statement on Wednesday that he still leads the organization.”