Yesterday my students and I were talking about legislation initiatives. One of the insights of our discussion, prompted by the experiences of some of them in drafting bills, was bringing up the question whether legislation was always designed to achieve its stated goals, or to serve some other enforcement goal. Some examples we floated around were the San Francisco sit-lie ordinance, which aims not at criminalizing sitting on the sidewalk per se, but rather to provide the police with an easy enforcement tool against undesirable urban elements without having to spell out the problem. This gap between proclaimed legislative intent and actual intent to enforce is something Dan Portman and I refer to in this piece as “inequitable enforcement.”

As has often been the case since the mid-1990, our example this morning comes from the world of pro-victim legislation. The 1990s, as Jonathan Simon convincingly argues in Governing Through Crime, were the decade of the victim, who became the symbolic citizen, occupying the role previously occupied by the yeoman farmer and the small business owner. In 2008, California citizens voted for Prop 9, also known as Marsy’s Law. Ostensibly a victim rights proposal (pretty much granting the same rights victims already had before the law passed), the big changes made by the proposal included lengthening the period before a given inmate is entitled to a parole hearing. At the time, we floated around the question whether Prop 9 violated the single subject rule, and some aspects of it were challenged at the 9th Circuit.

But the real question, which we could not answer at the time, was of course whether a legislative initiative ostensibly designed to increase victim participation in the criminal process really does so. And we now have an empirical answer, from a study by Laura Richardson: No, but it sure impacted the process in other ways.

Here is what the black-letter law purported to do:

Marsy’s Law has made major changes to many aspects of parole. Section 3041.5 of the California Penal Code was the most significantly altered by the adoption of Marsy’s Law. Marsy’s Law changed the default time for the date of the next parole hearing from a single year to fifteen years. It changed the amount of time that could be set between parole hearings from 1-5 years to 3-15 years. It altered the standard for deciding when to set the next hearing, shifting the burden from the state on justifying why the inmate continued to be a threat to public safety necessitating a longer time before the next hearing, to the inmate in showing the non- existence of reasons why he or she continues to be a threat to public safety. It also gave the board less discretion in setting parole hearings only allowing parole hearings to be initially set at either 3, 7, 10 or 15 years.


Section 3043 of the California Penal Code was significantly changed by the adoption of Marsy’s Law as well; allowing for victims, victims’ families and up to two representatives to have greater input during the parole hearing. Victims’ [sic] are now entitled to have their “entire and uninterrupted statements” heard by the Parole Board. Additionally, the inmate does not have the right to cross-examine the victim at the parole hearing.


After coding and analyzing 211 randomly-selected parole hearings both before and after the implementation of Marsy’s Law, Richardson’s findings are twofold: First, the time between parole hearings has nearly doubled, and the law is a strong determining factor of parole setting. 


Controlling for the factors described in Part II, the coefficient for Marsy’s Law in the regression shows a positive increase in the amount of time set by the Parole Board until the next hearing by 2.06 years (+/-0.72) for full parole hearings . . .  No other variable showed an equal positive increase in the amount of time set between parole hearings by the Parole Board. Marsy’s Law had a more significant impact on the time set until the next parole hearing by the Parole Board than any of the factors that the board must utilize in making their parole decisions or the inmate’s activity. 

And, the analysis fails to find any increase in victim participation in the process:



Using least squares regression to test the validity of my model I was unable to find any impact of Marsy’s Law on victim participation at the parole hearing. The only variable that was significant was whether the hearing was an initial or subsequent hearing. When the hearing was a subsequent hearing victim participation decreased by 1.219 (+/1 .46). 

Wait – Decreased?

This raises an open-ended question: In light of these findings, is Marsy’s law a failure or a success?

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Props to our friends at the Prison Law Blog and at Crim Prof Blog for the link.

2 Comments

  1. As the Campaign Manager for Marsy's Law and now as an Attorney who specializes in representing crime victims in court cases where the victim now has standing to participate at every stage of the proceedings, I can assure you that Victims have become empowered in California in a way we have never seen to date.

    Victims are actively participating in unprecedented numbers at the trial court level and we can expect, as the system begins to finally acknowledge Marsy's Law, that Victims will continue to make great strides to be recognized and heard in the criminal justice system.

    Todd Spitzer, Attorney at Law
    Victim's Advocate

  2. Thanks for writing, Todd. I'm sure your hope was to increase victim participation – I have no reason to doubt your sincerity – but if that is so, how do you explain the findings, beyond 'assuring' us that the bill did increase participation? The numbers flatly contradict this assertion.

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