In 2016, South Dakota voted in Constitutional Amendment S, dubbed Marsy’s Law. It is currently found in Article IV, Section 29 of the South Dakota Constitution Bill of Rights. The law was named after Marsy Nicholas who was the sister of Henry Nicholas, founder of the wireless corporation Broadcom. In 1983, Marsy was a senior at UC Santa Barbara, and was murdered by her boyfriend at the time, Kerry Conley. Conley was sentenced to life in prison with the possibility of parole. Conley died in prison, but the Nicholas family attended numerous parole hearings prior to his death. Nicholas then organized a campaign of legal advisors to draft a comprehensive bill of rights for victims. The main goal of Marsy’s Law was to provide Constitutionally protected rights to victims of crimes similar to those of the rights of criminals accused of crime. Several other states including Illinois, North Dakota and Montana have also adopted some form of Marsy’s Law into their constitutions.
Previously, in South Dakota, victim’s rights were only found in the codified statutes under the South Dakota Victims Rights Act. Those in favor of the passage of Marsy’s Law contended that the rights, as stated in the codified law, were not enforceable and were not as comprehensive in the type of crimes that afforded victims special rights. As a Constitutional Amendment, Marsy’s Law became the supreme law of the State of South Dakota and all other contradictory state laws became invalid or unconstitutional.
If you are a direct victim of crime, a person who suffers direct physical, mental, or financial harm of a crime or a spouse, lawful representative or immediate family of a victim, Marsy’s Law affords you inalienable rights during and after a criminal proceeding. Article IV, Section 29 of the South Dakota Constitution enumerates nineteen separate provisions and qualifications for the application of those rights. As a victim of crime in South Dakota you now must be given a card, called Marsy’s Card, that states your rights. You have the right to privacy, meaning the right to prevent disclosure of of information that could be used to locate or harass you or your family. You may also obtain a protection order against harassment by the offender. You have the right to refuse to answer any questions formally or otherwise, or other legal discovery request (limited only by the 8th Amendment to the US Constitution, whereby an offender has the right to confront their accuser in Court). You have the right to participate in legal proceedings, to receive legal paperwork and to confer with the prosecutor. You have the right to the return of property used as evidence after trial. You have the right to be informed of every decision and action taken by the Courts against the offender. You have the right to be notified of and to attend sentencing and parole hearings of the offender. You have the right to be notified of and to have your safety concerns addressed upon the release of an offender. All of these rights are enforceable by you, your attorney or via the prosecutor at any point. The Court must act promptly to enforce your rights, in a manner no less vigorous than would be afforded the criminal offender.
If you have been charged with a crime, Marsy’s Law affects you as well. More than ever before any person, family, or legal representative affected by your crime will have the right to participate themselves, via an attorney or the prosecutor in your case, from the initial plea or indictment through sentencing and even incarceration and after. The effects of the participation of the victim can influence a prosecutor or judge during any point of your legal proceedings. In fact they may affect the proceedings themselves, if a victim feels that their rights were not protected in a way no less vigorously than your rights as the accused. It may be more difficult to obtain information regarding the victim in the discovery portion of your representation. You may be ordered to pay restitution to the victim(s), and money will be first applied to the restitution before any fines or costs are paid to the State. Regardless of Marsy’s Law, you are still entitled to and afforded every right given by the United State’s Constitution, because Marsy’s Law is South Dakota law and the US Constitution trumps that of any state.
If you are the victim of a crime, or certainly if you have been accused of a crime, you may need legal representation to protect your rights. Call the office of Wilka and Welter to discuss how we can help you.