New Wording in Marsy’s Law Amendment Comes as the Result of Bevin’s Pardons

FRANKFORT, Ky. — A new provision to the crime victim’s bill of rights was added after former Gov. Matt Bevin issued several controversial pardons in his final days in office.

Bill sponsor Sen. Whitney Westerfield, R-Hopkinsville, says backers of Senate Bill 15, called Marsy’s Law, were concerned if Marsy’s Law had been ratified in its original version in 2018 if victims of those pardoned by Bevin would have been notified, which Westerfield said wasn’t explicitly in the text. 

“The whole point of Marsy’s Law is to make sure victims have a meaningful role the process and the pardons are certainly part of the process and we wanted to make sure the victims were consulted there too and it doesn’t appear they were in any of these cases,” Westerfield said. “I think that’s important, and I think it was an oversight that was done and we want to make sure that future governors have to abide by that and we want to make sure that those victims are consulted or at least an attempt is made to honor that constitutional right.”

The provision added to the amendment text is: “victims shall have the reasonable right, upon request, to timely notice of all proceedings and to be heard in any proceeding involving a release, plea, sentencing, or in the consideration of any pardon, commutation of sentence, granting of a reprieve, or other matter involving the right of a victim other than grand jury proceedings”

If this is ratified it’s not clear if a governor will have to document his effort in reaching out to the victim but Westerfield says it will likely be public record.

“I think it would be wise for the governor to do that if it is a constitutional right I would want to make sure my ducks are in a row and that I was documenting all the steps that were being done,” Westerfield said. “Regardless of how it mechanically happens for the governor’s office now or in the future, we just want to make sure victims are consulted, whether it’s through the prosecutor, whether it’s through the victim’s themselves, they need to have their voices heard. I suspect if you heard from the victims in some of these pardons or any pardons over the history of the commonwealth, I’m betting you can find some victim’s that wishes they had asked before the pardon was issued.”

 The original Marsy’s Law was ratified by Kentucky voters with 63 percent of the vote but Senate Majority Floor Leader Damon Thayer, R-Georgetown, thinks with all the attention surrounding Bevin’s pardons adding this provision in could help the amendment pass with an even higher threshold.

“I think it was a really good step, Marsy’s Law is all about the rights of crime victim’s and in the event of pardons there should be something in there about notification of the victims and or the victim’s families,” he said.

As in 2018, there is a companion bill filed with it as well. Senate Bill 80 is the enabling legislation that makes the statutory changes to what constitutes as a victim as well as addressing the practical implications of the constitutional amendment. Westerfield says the language is identical to what was passed in 2018. The biggest change in the statute is the definition of a victim.

“We have a list of enumerated crimes in statute right now and if you are not a victim of one of those dozen or two dozen crimes then you have no rights at all, you don’t have a right to be present at all, you don’t have a right to be heard, you don’t have a right to anything,” Westerfield said. “We want to make that group as big as possible and make sure that all of them enjoy these constitutional rights.”

The referendum if adopted will ensure crime victims have the right to notice of court proceedings, the right to be present in court proceedings, the right for victims to have a voice throughout the legal process, and the right to be made aware of their offenders’ custodial status.

To comply with the Kentucky Supreme Court ruling the full text of the amendment will appear on the ballot.

Here’s the text of the amendment:

“To 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, a victim, as defined by law which takes effect upon the enactment of this section and which may be expanded by the General Assembly, shall have the following rights, which shall be respected and protected by law in a manner no less vigorous than the protections afforded to the accused in the criminal and juvenile justice systems: victims shall have the reasonable right, upon request, to timely notice of all proceedings and to be heard in any proceeding involving a release, plea, sentencing, or in the consideration of any pardon, commutation of sentence, granting of a reprieve, or other matter involving the right of a victim other than grand jury proceedings; the right to be present at the trial and all other proceedings, other than grand jury proceedings, on the same basis as the accused; the right to proceedings free from unreasonable delay; the right to consult with the attorney for the Commonwealth or the attorney’s designee; the right to reasonable protection from the accused and those acting on behalf of the accused throughout the criminal and juvenile justice process; the right to timely notice, upon request, of release or escape of the accused; the right to have the safety of the victim and the victim’s family considered in setting bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction; the right to full restitution to be paid by the convicted or adjudicated party in a manner to be determined by the court, except that in the case of a juvenile offender the court shall determine the amount and manner of paying the restitution taking into consideration the best interests of the juvenile offender and the victim; the right to fairness and due consideration of the crime victim’s safety, dignity, and privacy; and the right to be informed of these enumerated rights, and shall have standing to assert these rights. The victim, the victim’s attorney or other lawful 6 representative, or the attorney for the Commonwealth upon request of the victim may seek enforcement of the rights enumerated in this section and any other right afforded to the victim by law in any trial or appellate court with jurisdiction over the case. The court shall act promptly on such a request and afford a remedy for the violation of any right. Nothing in this section shall afford the victim party status, or be construed as altering the presumption of innocence in the criminal justice system. The accused shall not have standing to assert the rights of a victim. Nothing in this section shall be construed to alter the powers, duties, and responsibilities of the prosecuting attorney. Nothing in this section or any law enacted under this section creates a cause of action for compensation, attorney’s fees, or damages against the Commonwealth, a county, city, municipal corporation, or other political subdivision of the Commonwealth, an officer, employee, or agent of the Commonwealth, a county, city, municipal corporation, or any political subdivision of the Commonwealth, or an officer or employee of the court. Nothing in this section or any law enacted under this section shall be construed as creating: (1) A basis for vacating a conviction; or (2) A ground for any relief requested by the defendant.”