Kentucky is one of only three states that have no form of civil rights restoration by statute. If you listen to My Old Kentucky Podcast, you’ve only heard me say that 100 times. That’s why pardons, commutations, and executive orders are so important. Only our executive has the ability to restore a person’s rights.
Pardons versus commutations
Much (and I mean very much) has been said about Matt Bevin’s pardons, but it’s important to know that there are pardons, but there are also commutations. A pardon means full legal forgiveness. A lot of the people pardoned were already out of prison, but the pardon effectively erases their convictions and restores their civil rights.
A commutation, on the other hand, shortens a sentence, but does not remove the conviction. A person whose sentence is commuted still lives with the effects of their conviction, i.e. losing the right to vote, to serve on a jury, to own a firearm. Commutations sometimes mean shortening a sentence to “time served,” but that isn’t always the case. For example, a death sentence can be commuted to a life sentence. A “life without parole” sentence may be commuted to a “life with the possibility of parole” sentence. This does not mean the person gets out; it only means they have an opportunity to see the parole board, and Kentucky does not grant parole often.
At the end of his term, Bevin issued nearly 700 pardons and commutations. About half were for people who had been convicted previously of drug possession, and each person was screened for various risk factors. The other half ranged from theft and marijuana charges to murder.
Why would a governor issue pardons?
There are a lot of reasons a governor might use the pardon power on a seemingly serious case. First, evidence of actual innocence is not enough sometimes to warrant reversal of a conviction (Herrera v. Collins, 506 U.S. 390 (1993)). Wrongful convictions happen all the time and many incarcerated people cannot afford to keep fighting their convictions, while others eventually exhaust their remedies. But, even if wrongful convictions were incredibly rare, I would still want my governor to use his pardon power, because our laws are extremely harsh.
Because of enhancement statutes, a drug crime can become a Class A felony where the minimum punishment is 20 years and the maximum is life (KRS 218A.1432). Robberies and burglaries can carry 10- to 20-year sentences. Some robberies and burglaries can fall under the “violent offender” statute, which requires a person to serve 85% of their sentence before becoming eligible to even see the parole board (KRS 439.3401). This applies to people as young as 14 years-old (KRS 640.030). Violent offenders also can’t receive “good time” credits for good behavior, so there aren’t really opportunities to serve out early. We also have a persistent felony offender statute that can literally double a person’s sentence (KRS 532.080).
Additionally, sometimes victims no longer want people to be incarcerated. Sometimes they never wanted it in the first place. Prosecutors can choose to prosecute, even when the victim says no. I’m willing to bet every defense attorney can name a case they’ve had where the victim did not want to prosecute and their client ended up behind bars anyway.
People also grow and change, especially people who committed crimes when they were young. They become rehabilitated. They receive treatment for the problem that landed them in prison. They grow older and mature. Even the U.S. Supreme Court has recognized that young people are categorically less culpable and have enhanced prospects for change (Roper v. Simmons, 543 U.S. 551 (2005)).
Attitudes around certain crimes have also started to change. We’ve started shifting (though ever so slightly) towards treatment programs over jail, and toward restorative justice practices. Experts are even recommending restorative justice programs for sex offenses. There are so many good reasons someone might be worthy of a pardon or commutation.
Details on some of the pardons
Looking at Bevin’s pardons and commutations, there are some positive ones, and some that are not as positive.
- He commuted a few death sentences to life sentences. One of those was Gregory Wilson, who has been fighting his case for decades after essentially having to represent himself in his capital trial. During his trial, his co-defendant was also taken into chambers to have sex with a judge. Oh, and someone else has confessed to the murder.
- Bevin also pardoned a man who served 20 years on minor drug charges because of sentencing enhancements.
- He commuted the sentence of Daniel Hostetler, an Amish young man with a low IQ who was charged with killing Brandon Crain, whose death was initially ruled a suicide. He pled guilty to manslaughter on the advice of his attorney, though there was a ton of evidence that Hostetler was three hours away at the time Crain died.
- He pardoned Amanda Hall, who now works for the ACLU, and Christopher 2X, who is a well-known gun violence advocate in Louisville.
- He pardoned Kurt Smith, who has been in prison for nearly twenty years for killing his child when he was only 17-years old.
- He also pardoned Delmar Partin, who has been in prison for over 25 years for killing his girlfriend.
- He pardoned Christian Moffett, former State Representative Phil Moffett’s son, on drug and firearm charges.
And, of course, he also pardoned Patrick Baker, who was convicted of reckless homicide and robbery just a few years ago. It’s this pardon that has been viewed as one of the most controversial by the media. Baker’s brother hosted a fundraiser for Bevin. And, former state representative and Department of Juvenile Justice Commissioner Denny Butler had a hand in recommending the pardon of Baker. It’s also of note that Baker’s co-defendants remain incarcerated.
And, he pardoned Micah Schoettle who has been in custody since 2016 on rape and sexual assault charges, and Charles Phelps, a former school official who has already served his sentence on a child pornography case.
The backlash begins, and more details emerge
As the pardons trickled in, discussions about bills to limit the pardon power began. Then, Senate President Robert Stivers called for a federal investigation into Bevin’s pardons. In an interview on Monday, former Justice Cabinet Secretary John Tilley agreed that some of the pardons were inappropriate, and said that the Cabinet opposed five of the pardons. The Public Advocate, Damon Preston, said he met with Bevin about pardons and Bevin had a file and substantial information about every case. Preston sent Bevin applications for about 40 people for potential pardons, which did not include the “controversial” ones like Patrick Baker. Rob Sanders, a somewhat controversial prosecutor from northern Kentucky and part of the Cameron transition team also weighed in, saying that he had always supported Bevin, but the pardons have changed his mind. The pardon outrage has been big and bipartisan.
After the backlash began, Bevin posted a series of tweets last Friday, mostly about redemption and second chances. Then over the weekend, Bevin called Joe Sonka of the Courier-Journal. He said he welcomed a federal investigation and suggested that the county prosecutors could end up being the ones investigated once they look into his pardons. He also confirmed a popular hypothesis that he went through the pardon process by himself. Working alone and making decisions without seeking the advice of others within the administration seemed to be a theme of Matt Bevin’s governorship, so this was unsurprising. I do believe that he worked hard, but the process could have certainly been better with the help of people like staff attorneys.
Since Matt Bevin started talking, things have only gotten worse. When asked about pardoning a man convicted of a sex offense, Bevin responded that there was no evidence because the child’s hymen was still intact. I would say this is up there as one of Bevin’s worst comments ever. While it may be true that some of the cases pardoned lacked sufficient evidence, Bevin’s comment was disgusting and also bad science. Then on Friday, the Courier-Journal released race data on Matt Bevin’s pardons, which showed that 95% of the people he pardoned were white. In a state where African-Americans make up 8% of the total population, but 20% of the incarcerated population, that’s pretty disappointing.
My frustrations with the media coverage and the possible fallout
A few things have been really frustrating about Pardon-Gate. Pardons are good and so many people are worthy of them. This negativity may make executives less willing to use their pardon power and I think the reaction, especially by those who claim to be progressive or passionate about criminal legal reform, is imprudent and bad for the reform movement.
The way the media treated the pardons is also upsetting. The NPR headline “On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More” is extremely unhelpful, as is the Courier-Journal article that decided the 12 “most controversial pardons.”
Many stories in the media also featured only interviews from the prosecutors on the case, and of course, the prosecutor wants the person they prosecuted to be in prison. Choosing to feature only interviews from prosecutors in articles about pardon reactions is just bad and lazy journalism.
Finally, Matt Bevin pardoned many people who have turned their lives around and have done awesome work, like Amanda Hall at the ACLU, and that is getting overshadowed.
Horrific comments and racial data aside, I’m still glad he pardoned these people. They all served time, and though maybe some were more deserving than others, I don’t think the Commonwealth is less safe than it was before.
While I think those pardons are good, Bevin is definitely not blameless. Pardoning your friend’s kid and people who financially supported you is a super easy way to get the media to attack you. The huge reaction has been frustrating, but Bevin is the one to blame for creating it.
The fact remains that Kentucky is incarcerating people too often and for too long. Any limits on the pardon power that come from this will be a real shame.
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