The People Have Spoken: Marsy's Law and its Impact on Law Enforcement Agencies
By: J. David Marsey
Published in Florida Police Chief’s Association, Green Alert, December 28, 2018
Marsy’s Law was approved by Florida voters in the 2018 general election and amended Article I, Section 16 of the Florida Constitution to provide substantive rights to crime victims. These new rights impact the entirety of the criminal justice system and each agency that operates within it. Although many of the changes impact the courts, prosecutors, agencies that operate jails and the Florida Department of Corrections, several changes affect law all enforcement agencies that have contact with victims. These new substantive rights may require immediate revision to agency policies and procedures and may create the need for training to comply with its provisions.
Crime victims now have the constitutional right to prevent the disclosure of information or records that could be used to locate or harass them or their families, or which could disclose their confidential or privileged information. This exemption is not permanent, however it applies throughout criminal and juvenile justice processes. Agencies should revise their training and public records fulfillment processes to include a review of the status of criminal cases that are the subject of a public records request, including any pending appeals, to determine if this exemption applies. Custodians should also confer with crime victims to determine if they chose to exercise their right to privacy, and develop policies on how to address circumstances where the victim is unavailable or unreachable. Line officers should be required to confer with victims regarding their desires to exercise their right to privacy at the time of the initial contact and to document responses in the offense and/or arrest reports to streamline document productions. Alternatively, agencies should develop policies and practices after conferring with their counsel on how to handle victim information in the absence of express instructions by victim’s on whether they chose to exercise their right to privacy. Because this constitutional exemption is self-executing, records custodians should cite to this constitutional provision as authority for redaction of qualifying information as there is no implementing statute.
Among the new rights is the victim’s right to have reasonable notice of and to be present for all public proceedings and the right to be heard in any proceeding involving pretrial or other release from custody. While many agencies have already implemented the requirement to provide a victim written notice of their rights under this section, many have not yet implemented procedures to incorporate the first appearance hearing notice requirements. Because the arresting agency is often the gateway to the criminal justice system it is in a unique position to provide the required notice of this important proceeding. These notice requirements are satisfied by a reasonable attempt by the arresting agency to notify the victim and convey the victim’s views to the court. Agency training, policies and procedures should be revised to require arrest affidavits to include documentation of the required notice of first appearance as well as the victim’s position on pretrial release. This is a simple and cost effective mechanism to ensure the victim’s voice is heard at the initial hearing and that the presiding judge has the necessary information prior to making a determination of the terms of release.
Nothing in Marsy’s law creates a special relationship or duty between any agency and a crime victim nor does it create a separate cause of action against an agency or its employees. However, agency heads, law enforcement executives and their counsel should strive to enact policies and procedures to protect victim’s rights in conformity with the Florida Constitution.