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updated: 2/9/2018 2:55 PM

South Dakota speaker, campaign negotiating Marsy's Law deal

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PIERRE, S.D. -- A voter-approved constitutional bill of rights for crime victims that critics say is causing problems for South Dakota authorities and prosecutors could be changed rather than repealed, in a potential deal with the group that campaigned to pass the measure, the state House speaker said this week.

Republican Rep. Mark Mickelson and others earlier this legislative session proposed getting rid of the "Marsy's Law" amendment and instead strengthening victims' rights in state law. But Mickelson and campaign group Marsy's Law for All have instead been negotiating changes to the amendment, which passed with about 60 percent support in 2016.

"If we can make an agreement with them, that's what will happen," Mickelson said.

South Dakota would be the first state to repeal or change Marsy's Law of the six that enacted it, according to Gail Gitcho, a spokeswoman for Marsy's Law for All. She said the goal of the negotiations is to uphold the will of the voters and to ensure that crime victims have rights guaranteed in the state constitution.

The rights in the amendment include privacy, protection from harassment or abuse and timely notice of trial, sentencing and post-judgment proceedings. They extend to a victim's spouse and family members.

It's named after California college student Marsalee "Marsy" Nicholas, who was stalked and killed in 1983 by an ex-boyfriend.

Her brother, billionaire Henry Nicholas, has bankrolled constitutional amendments approved by voters in California, Ohio, Illinois, Montana, North Dakota and South Dakota. Montana's Supreme Court recently tossed the constitutional amendment that voters approved in 2016, citing flaws in how it was written.

In South Dakota, scrubbing or changing the amendment now would require voter approval in November. Brokered peace could spare critics - who contend it has hampered investigations and increased costs for counties - from running an expensive race against a well-funded opponent. The Marsy's Law campaign spent over $2 million to enshrine the victims' rights amendment in the constitution with minimal opposition.

Hinting at a potential push against the repeal plan, Marsy's Law for South Dakota last week tweeted a campaign-style photo targeting Mickelson and highlighting support for the amendment. Supporters have a "planning breakfast" scheduled Tuesday near the state Capitol.

Mickelson said changes could include requiring victims to opt into their rights, explicitly allowing authorities to share information with the public to help solve crimes and limiting officials' notification obligations to a victim or a representative.

Minnehaha County Sheriff Mike Milstead has said his office depends on the eyes and ears of the public to help the Sioux Falls-based department solve cases, but the amendment has limited the information they can provide. Mickelson has said he and others are trying to fix unintended consequences from Marsy's Law that have degraded victims' rights.

Krista Heeren-Graber, executive director of the South Dakota Network Against Family Violence and Sexual Assault, said she likes some parts of Marsy's Law and struggles with others. She said the group wants to make sure victims have rights and receive them.

Pennington County State's Attorney Mark Vargo said he had to add four victims' advocates after the amendment passed to make sure the office could stay in compliance. He said employees now spend a lot of time communicating with people about "fairly low-level" cases.

There's a tradeoff, he said.

"We are putting time and effort into letting people know about petty thefts and criminal trespasses, and that diminishes the amount of time and resources that we have available to deal with people on what we consider to be much more serious cases," Vargo said. "Every time you insist that we treat petty thefts like a rape, rape victims are going to suffer."

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