Susana Tolentino, Associate Member, University of Cincinnati Law Review
Ohio has expanded victims’ rights under Marsy’s Law. The Law, featured on the 2020 general election ballot, came out of a victims’ rights movement that sought to give crime victims constitutional rights equal to those of the accused. The ballot explained the purpose of Marsy’s Law as expanding victims’ rights by ensuring “due process, respect, fairness, and justice for crime victims.” As a provision of the Law, victims are given the right “to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim.” The expansion makes “full restitution” a mandatory right under the Ohio Constitution.
State v. Yerkey asks the Supreme Court of Ohio to consider the meaning of “full restitution” under Marsy’s Law. The Court must decide whether “full restitution” includes compensation to the victim for wages lost due to attendance of court proceedings. Part II of this article will provide additional background on Marsy’s Law and State v. Yerkey. Part III will suggest that the Supreme Court of Ohio will allow the lower court’s decision to award restitution for lost wages stand because the Ohio Constitution is superior to the State statutory framework for restitution. The Court must give effect to both. However, by allowing the lower court’s decision to stand, the Court may inadvertently leave the accused in a worse position than the accuser. Part IV will conclude by emphasizing that the accused and the courts may not know the extent of the repercussions of expanding victims’ rights under Marsy’s Law for some time to come.
A. Marsy’s Law is Self-Executing
Victims had rights before Marsy’s Law, but they required the general assembly to “define and provide [the rights] by law,” meaning further legislative action would be necessary to adopt victims’ rights. In contrast, Marsy’s Law decidedly states the amendment’s provisions “shall be self-executing” and “supersede all conflicting state laws,” eliminating the need for further legislative action before the rights are enforceable.
B. State v. Yerkey Procedural Posture
In a restitution hearing following the sentencing of Yerkey, in State v. Yerkey, an Ohio trial judge heard testimony from the victim, J.D., requesting compensation for lost wages due to attending court proceedings. The trial court ordered Yerkey to pay J.D. restitution of $1,615.00 for her lost wages. On appeal, the Seventh Appellate District Court unanimously reversed the judgment granting restitution to J.D. The Supreme Court of Ohio accepted the discretionary appeal on February 2, 2021, and heard oral arguments on June 30, 2021. The Court has not released its opinion.
C. The Appellate Opinion
The Appellate Court reversed the restitution award by narrowly construing Marsy’s Law within the existing state statutes governing restitution and defining economic loss. The statutory language defines economic loss, for restitution, as a loss incurred as “a direct and proximate result of the commission of the offense.” The court reasoned the economic loss incurred due to the victim’s voluntary attendance at the prosecution of the offense was not a “direct and proximate result of the commission of the offense.” Because the word “commission” is used in the definition, not the word “prosecution,” the court held the economic loss in this case did not fit under the statutory definition and reversed the lower court’s award of restitution.
The Appellate Court improperly construed Marsy’s Law, a Constitutional Amendment, under the narrower statutory framework. The provisions of Marsy’s Law are “self-executing” and “supersede all conflicting state laws.” Because Marsy’s Law, a constitutional amendment, is of greater authority than statutory law, the court was required to give effect to its language. By reading the statute to prohibit the restitution award, the court failed to give proper weight to the provision in Marsy’s Law that requires the victim receive “full and timely restitution.” Here, the court, by excluding lost wages resulting from attendance of the prosecution, did not give full effect to “full restitution.” Therefore, the Supreme Court of Ohio should reverse the Appellate courts holding and reinstate the order for restitution for lost wages to the victim.
It is clear from the legislative history that Ohio meant to increase victims’ rights when it proposed and adopted Marsy’s Law. Not only does the Law provide for “full and timely restitution” but it also includes the right for the victim to be present and heard at all public proceedings involving the criminal offense implicating the victim’s rights. Including these provisions entitles the victim to restitution for the economic loss suffered by taking advantage of the victim’s rights. Therefore, by correctly observing the weight of authority, the Supreme Court of Ohio will necessarily need to reinstate the order for restitution; however, if the Court does find for the State, there may be unintentional ramifications.
Advocates for Marsy’s Law say the Law “ensures that victims of crime have equal, constitutional rights on the same level as those accused and convicted of crimes.” However, providing for “full restitution” under Mary’s Law, Ohioans may have inadvertently over-calibrated and tipped the scales to favor the victim over the defendant. A defendant who wishes to defend him or herself from felony charges, under constitutional rights to a trial by jury and due process, will naturally weigh exercising these rights against the additional restitution payments that will be due as a consequence. Because the Supreme Court of Ohio, in Yerkey, is only reviewing whether restitution includes reimbursement for lost wages for attendance at court proceedings, it is likely the Court will narrowly answer only this question.
Under a narrow holding, it will take time for the full picture of which economic losses fall under the umbrella of “full restitution” to become clear. Trial courts will be left to use their discretion to decide when a loss meets the definition on a case-by-case basis. For example, the victim may have had to place children in childcare for the occasions he or she was present at the prosecution of the offense. What is a reasonable time frame for the care or a reasonable rate of pay for the care? What happens if a victim is denied time off work and loses his or her job as a result of attendance? Will the accused be responsible for the victim’s lost wages until a new job is found? The accused will be put in a position of needing to weigh the potential financial exposure of exercising his or her constitutional rights with a trial by jury and due process, all without a clear understanding of the possible full extent of that exposure.
The exposure will, in time, inevitably go beyond the exposure as seen in Yerkey. Victims seeking “full restitution” will have other economic losses outside of lost wages for attendance of court proceedings that will eventually be evaluated by the courts. For example, if the victim was not physically injured but experienced trauma because of the commission of the offense, and he or she missed work because of these mental health reasons, will the accused be responsible for these lost wages? The accused will not know the answer to these questions until more cases are tried, and even then, the decisions could vary from court to court. Finally, there is the chance a defendant is wrongfully convicted or has his or her conviction reversed on appeal. At that point, the accused may have paid restitution and suffered economic hardship that cannot be undone with reimbursement.
It is possible providing broad constitutional rights to victims under Marsy’s Law may have inadvertently tipped the scales past the point of level to favor victims’ rights over those of the accused. The question may come back to the General Assembly if the courts cannot or are unwilling to impose guardrails around just how far “full restitution” can go.
Marsy’s Law sought to create co-equal rights for the accused and the accuser. By putting victims’ rights into the Ohio Constitution and providing for the Law to be “self-executing” and to “supersede all conflicting law,” victims have been given broad and powerful rights that the courts must uphold. The application of the Law may have sweeping effects, so much so that the Law may end up surpassing its aim, and accusers may end up with rights outweighing those of the accused. The total effect of the Law will likely not be seen for years to come as the courts define “full restitution” case-by-case. If the Law proves unwieldy, we may see criminal defense advocates seeking to amend the Law in the future.
 Ohio Const. art. I § 10(a) (West 2021).
 Centerville v. Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 15.
 Ohio Const. art. I § 10(a)(A)(7) (West 2021) (“Rights of Victims of Crime (A) To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused: (7) to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim”).
 State v. Yerkey, 161 Ohio St.3d 1420, 2021-Ohio-254, 161 N.E.3d 713 (Table).
 State ex rel. Ohio Roundtable v. Taft, 76 Ohio St.3d 643, 644 (1996) (“[S]ubordinate authority must always yield to contrary paramount authority, i.e. the Ohio Constitution.”).
 Ohio Const. art. I, § 10a (West 2016) (“Victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process, and, as the general assembly shall define and provide by law, shall be accorded rights to reasonable and appropriate notice, information, access, and protection and to a meaningful role in the criminal justice process.”).
 Ohio Const. art. I, § 10(a)(10)(E) (West 2021) (“(E) All provisions of this section shall be self-executing and severable, and shall supersede all conflicting state laws.”).
 State v. Yerkey, 2020-Ohio-4822, (7th Dist. Columbiana, No. 19 CO 0044), ¶ 11-13.
 Id. at ¶ 14.
 Id. at ¶ 30.
 State v. Yerkey, 2021-Ohio-254, (Feb. 2, 2021); Supreme Court of Ohio – Case No. State v. Yerkey, The Ohio Channel, https://www.ohiochannel.org/video/supreme-court-of-ohio-case-no-2020-1392-state-v-yerkey (last visited Nov. 6, 2021) https://perma.cc/LRK6-8JPE.
 See Yerkey, 2020-Ohio-4822 at ¶ 26; (“R.C. 2929.32, governing restitution, and R.C. 2929.01(L), defining economic loss, both state that in order to qualify for restitution, any economic loss suffered must have occurred “as a direct and proximate result of the commission of an offense.”).
 O.R.C. Ann § 2929.01(L) (West 2021) (emphasis added).
 See Yerkey, 2020-Ohio-4822 at ¶ 26 (emphasis added).
 See Supra note 10 and accompanying text.
 See Supra note 8.
 See Supra notes 2, 4.
 See Supra notes 2, 10, 24.
 Ohio Const. art. I § 10(a)(3) (West 2021) (“(3) to be heard in any public proceeding involving release, plea, sentencing, disposition, or parole, or in any public proceeding in which a right of the victim is implicated”).
 See Supra note 24 and accompanying text.
 See Supra note 10.