Marsy’s Law May Have Put North Dakota in Violation of the 8th Amendment

Shane Goettle, a member of the committee sponsoring Marsy's Law, speaks at a press conference in the state capitol prior to petitions, shown in front of podium, being delivered to the Secretary of State's office. In back from left are Marsha Lembke, Burleigh County Sheriff Pat Heinert, Kelly Leben of the Burleigh County Sheriff's Department, Lacee Anderson, Kathleen Wrigley and Nicole Peske. TOM STROMME/Bismarck Tribune

Marsy’s Law is yet another of the legal headaches created by North Dakota’s deeply flawed initiated measure process.

Approved by voters after a slick marketing campaign bankrolled by a California billionaire (who is currently facing drug trafficking charges), Marsy’s Law created in North Dakota’s constitution what supporters call “victim’s rights” and more honest observers describe as a blatant subversion of due process and other constitutional protections for the accused.

“In short, a district court may not consider a defendant’s ability to pay in determining the amount of restitution awarded to a victim,” Justice Jerod Tufte wrote in the majority opinion.

Case in point, the North Dakota Supreme Court just struck down portions of section 12.1-32-08 of the North Dakota Century Code relating to the restitution which can be required of people convicted of a crime.

In State v. Strom, a woman named Melinda Strom was convicted of embezzling from a drilling company she worked for and was ordered by the court to pay back over $690,000 in restitution. She appealed that order, arguing that it’s not in keeping with the aforementioned section of the Century Code which states that court-ordered restitution “may not exceed an amount the defendant can or will be able to pay.”

But the Supreme Court struck down that part of state statute, citing the state constitution as amended by Marsy’s Law which gives victims, “The right to full and timely restitution in every case and from each offender for all losses suffered by the victim as a result of the criminal or delinquent conduct.”

“In short, a district court may not consider a defendant’s ability to pay in determining the amount of restitution awarded to a victim,” Justice Jerod Tufte wrote in the majority opinion.

That makes sense if we only consider this as a conflict between state statute and the Marsy’s Law amendment in the state constitution. The latter, in that narrow context, trumps the former.

But what about the 8th amendment to the U.S. constitution? It states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The fines clause is what’s important to the matter at hand, and U.S. Supreme Court precedent defines restitution as a fine for constitutional purposes.

What are left with then is Marsy’s Law, by giving victims a state constitutional right to full restitution in all cases, leaving the courts unable to consider a defendant’s ability to pay when assessing restitution. Which would seem to leave North Dakota law, as modified by State vs. Strom, in violation of the 8th amendment’s prohibition on excessive fines.

A headache which might have been avoided if we the direct democracy fetishists didn’t insist that we allow complicated, nuanced legislation to be enacted at the ballot box by voters who are largely clueless as to the consequences.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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