As Kentuckians prepare to cast their votes in the primary, they should begin to consider the pros and cons of a constitutional amendment that will appear on the November ballot — especially in light of recent events.
The General Assembly approved SB 15, Marsy's Law, earlier this year.
https://apps.legislature.ky.gov/record/20rs/sb15.html
SB 15's aim is "[t]o secure for victims of criminal acts or public offenses justice and due process and to ensure crime victims a meaningful role throughout the criminal and juvenile justice
systems."
https://www.facebook.com/419650175248377/posts/643992622814130/?d=n
It drew criticism from opponents from across the political spectrum who questioned its "inconsistent and confusing language that [is] at odds with Kentuckians' constitutional rights and create[s] significant unintended consequences."
https://amp.courier-journal.com/amp/4893307002
Its impact on access to public records in states where it has already been enacted has, in many cases, been overwhelmingly negative.
"Although well intended," the Brechner Center observed earlier this year, "the ambiguous language has wreaked havoc on police agencies across [Florida and other] state[s] when it comes to allowing the public to learn about where a crime occurs." Frustrations with the law in Florida are attributed to the fact that there has been "no state-wide standardization, no guidelines for rollout or enforcement, and no litigation challenging the current law for clarification."
https://medium.com/@UFbrechnercenter/without-a-trace-how-a-misfired-flo…
Of particular concern has been the use of Marsy's Law by law enforcement agencies to withhold names of police officers who use force on the job, in some cases lethally, by characterizing the officers as crime victims.
https://www.tampabay.com/news/2020/02/06/florida-cops-who-use-force-kee…
https://www.tampabay.com/opinion/2020/02/07/victims-rights-amendment-ma…
In Florida, that practice is based on language that appears in the state's version of the law which gives victim's 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."
"The privacy right language creating those issues in Florida's [law] is not, and has never been, in Kentucky's amendment," the bill's sponsor, Senator Whitney Westerfield, R-Crofton, tweeted earlier this year.
Critics, such as the ACLU, are skeptical. We share that concern since it is "[i]mpossible to predict how it might play out in Kentucky."
It is unlikely that proponents of Florida's law envisioned the consequences of its enactment to the public right of access to previously nonexempt records identifying criminal activity in their communities or shielding police officers' use of force.
Critics here acknowledge that SB 15 differs from Marsy's Law in other states, but express concern that, if ratified by voters, it will amend the constitution to give victims a broad and undefined "privacy" right that might be used to withhold records that victims could argue would implicate their privacy, as in Florida, and perhaps even more expansively.
Time, and voters in the fall, will tell.
Immediately after the passage of SB 15, the House passed SB 80 by a vote of 81 to 8. If Marsy's Law is ratified by voters, SB 80 will amend various sections of the current Crime Victim Bill of Rights, found in Chapter 421 of the Kentucky Revised Statutes, to bring it into line with Marsy's Law. SB 80 will take effect — if Marsy's Law is approved by voters — on November 3, 2020.
