Crime Victims United of California is in a debate with the staff in the Governor’s Office on Proposition 9. After learning a little bit about the status of victims in our criminal justice system I can’t imagine not supporting this measure.
This is a copy of their letter to Susan Fisher, the Victim Advocate for Governor Schwarzenegger.
Proposition 9 is the result of a failure of the Legislature to adopt protections for the people that are victims of crime.
August 28, 2008
Thank you for your prompt response to my email regarding Marsy’s Law – Proposition 9. While I sincerely appreciated your response and the concerns you raised, I continue to be perplexed by your lack of support for the initiative. Furthermore, I – along with other proponents for the measure – am quite disappointed with your lack of involvement as the Governor’s Crime Victim Advocate. As I mentioned in my previous note, Marsy’s Law is a victims’ initiative that deserves the support of the Governor’s Victim Advocate and the Governor himself.
With regard to the concerns you’ve raised, I must say that I do not believe they are entirely relevant to the need to pass the initiative before us and should not dissuade you or the Governor from supporting the measure.
First and foremost, Marsy’s Law was crafted by individuals with extensive California and national experience regarding victims’ rights and parole policies. In your note, you mentioned speaking with Steve Twist, Collene Campbell, Charlie Fennessey, Steve Ipsen, and Todd Spitzer; surely you recognize their tremendous credentials in these areas. Moreover, I would note former Senator Jim Nielsen, one of California’s most knowledgeable experts on parole and the Board of Parole Hearing’s (BPH) operations also reviewed and enthusiastically endorsed Proposition 9. He has unrivaled insider knowledge of the parole system. We too have spoken with each of these individuals and have confirmed that they in no way share your concerns. While the initiative may not have been crafted with the input of every “expert” or stakeholder, I respectfully disagree with your assertion that the team behind Marsy’s Law does not include the best and brightest in California’s criminal justice field.
The California District Attorneys Association (CDAA), as you know, has opted to remain neutral on the initiative. While we do not have the endorsement of CDAA, Marsy’s Law is fortunate to have the support of a number of the Association’s leaders including CDAA President Bonnie Dumanis, past president John Poyner, former President Jan Scully and numerous elected and accountable district attorneys including Greg Totten, Gary Lieberstein, Rod Pacheco, Mike Ramos, Tony Rackauckas, Ed Jagels and Elizabeth Egan. Furthermore, we are proud to have a tremendous coalition of supporters including sheriffs, police chiefs, probation chiefs and – most importantly – crime victims’ advocacy groups and individual victims.
With respect to monitoring the courts’ numerous responses to BPH decisions and Governor’s vetoes of parole grants, the proponents and drafters are well aware of these actions. We also are well aware of the recent California Supreme Court decision regarding parole denials. However, Marsy’s Law was cleared for placement on the ballot long before this decision was announced. As such, it does not deter or hinder the importance of the initiative.
Furthermore, the Court said decisions on whether to grant parole to prisoners who received life sentences should be based on whether the inmate would pose a current danger to the public if released. While the court’s action marks a departure from a previous ruling, which held that the commitment crime itself could justify denial, they also provided that the courts should examine whether the nature of the crime and other evidence support "the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety." The majority said that other evidence, such as the inmate’s prison record or his or her mental state or demeanor, should be considered in deciding whether the felon poses a safety threat. These components – despite the Courts’ pointing to state law that requires the parole board and the Governor "to normally grant parole to life prisoners who have committed murder" – will still allow for denials. Marsy’s Law does not require multi-year denials; rather, it allows them and would extend them for the cases that truly deserve them and can be justified. The U.S. Supreme Court has noted that about 90% of all prisoners are found unsuitable for parole at their initial hearing, while 85% are found unsuitable at the second and subsequent hearings. That being said, an offender’s record will speak for itself and we do not believe the provisions related to parole denials contained within Marsy’s Law will be problematic or in conflict with the Supreme Court’s decision.
With regard to the additional concerns you’ve raised, it is my understanding that Steve Twist has also provided you with direct answers to address the concerns.
We disagree with the assertion that the initiative does not provide enforceable rights to victims. Under the specific provisions of Marsy’s Law, “a victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in any trial or appellate court with jurisdiction over the case as a matter of right. The court shall act promptly on such a request.”
The 30-day notice requirement included in Marsy’s Law does not affect the right of victims, victims’ next of kin, support persons, etc. to be present and heard during a hearing. This right will be protected by the Constitution and current State law as follows:
(b) In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights:
(7) To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.
(8) To be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.
The victim, next of kin, two members of the victim’s immediate family, or and two representatives designated for a particular hearing by the victim or, in the event the victim is deceased or incapacitated, by the next of kin in writing prior to the hearing as provided in paragraph (2) of this subdivision have the right to appear, personally or by counsel, at the hearing and to adequately and reasonably express his, her, or their views concerning the prisoner and the case, including, but not limited to the commitment crimes, determinate term commitment crimes for which the prisoner has been paroled, any other felony crimes or crimes against the person for which the prisoner has been convicted, the effect of the enumerated crimes on the victim and the family of the victim, crime and the person responsible for these enumerated crimes, and the suitability of the prisoner for parole. , except that
(~From Marsy’s Law, Proposition 9)
With regard to notification of expedited hearings, the Board can order that notice be provided to and through the Board only. This addresses any concerns associated with offender-victim contact.
As you mention, problems that may arise following the enactment of Marsy’s Law will have to be amended by a ≤ majority vote of the Legislature or another ballot measure. This does not cause CVUC or Marsy’s Law proponents concern. CVUC has established relationships with current and incoming members and will work diligently with the Legislature and all stakeholders to address any and all problems that may arise. The process to alter the provisions of Marsy’s Law is not unlike those required to alter other measures enacted by initiative. Although the threshold for alteration is typically 2/3 rather than a ≤ vote, it is not of concern as the 2/3 vote often refers to the need to obtain the minority party’s support for altering these measures. CVUC is confident that with the support and assistance of all Marsy’s Law stakeholders we will be able to generate the necessary votes to correct any problems that may arise.
We are hopeful that these answers and the conversations you’ve had with Marsy’s Law proponents will provide you the information you need to formally support this important victims’ rights initiative as the Governor’s Victim Advocate. Furthermore, as the Governor’s Victim Advocate it is incumbent upon you to provide the Governor with accurate and appropriate recommendations that support victims’ rights in California. We urge you to do so and encourage him to take a support position on this important measure.
Finally, CVUC is committed to working with you and the Governor to address the California Supreme Court’s decision that would limit the Governor’s discretion to base denials on the heinous nature of the crime. The courts have in essence taken this critical responsibility out of the hands of the Executive Branch and set a precedent that will surely have detrimental public safety impacts as they’ve altered the legal standard for denying parole and limited the governor’s discretion in these cases. Nevertheless, Marsy’s Law must be enacted and be given the opportunity to provide relief and additional rights for victims in California.
We look forward to receiving any additional comments or concerns you may continue to have with regards to Marsy’s Law.
Cc: Governor Arnold Schwarzenegger; Susan Kennedy, Chief of Staff, Office of the Governor; California District Attorneys; California Asst. District Attorneys; Law Enforcement Groups; California Sheriffs; California Police Associations; CVU Executive Board; CVU Advisory Board