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December 14, 2019

A Kentucky clemency controversy captured in headlines

Just under two decades ago, Prez Bill Clinton created a huge stir when granting 140 pardons and a few commutations on his very last day of office.  That controversy comes to mind as I see news about former Kentucky Gov. Matt Bevin's clemency spree as he relinquished power in the last few weeks.  This Kentucky clemency controversy has many elements, so I figured I would use headlines of numerous press pieces to provide an overview:

From NPR, "Outgoing Kentucky Gov. Matt Bevin Issues 428 Pardons, Many Which Are Controversial"

From CNN, "Former Kentucky governor pardons convicted child rapist"

From the Louisville Courier Journal, "Kentucky governor pardons convicted killer whose brother hosted campaign fundraiser for him"

Also from the Louisville Courier Journal, "Senate President Robert Stivers wants feds to investigate Matt Bevin's pardons"

From The Hill, "McConnell: Bevin pardons 'completely inappropriate'"

Also from The Hill, "Former Kentucky Gov. Bevin defends pardons amid backlash"

Also from NPR, "Kentucky Lawmaker Wants Constitutional Amendment to Reform Governor's Pardoning Power"

December 14, 2019 at 08:30 PM | Permalink


Utterly horrific.

One solution would be a rate limitation on pardons and commutations. Or at least a rate limitation starting a week before the election.

Posted by: William C Jockusch | Dec 15, 2019 8:04:21 AM

What kind of "rate limitation" do you have in mind, William? According to PPI, there are over 100,000 persons under active criminal justice supervision in Kentucky, https://www.prisonpolicy.org/profiles/KY.html, and surely at least 10 times as many with some criminal history. With a likely pool of at least 1 million possible clemency recipients, grants to under 500 persons would be a grant rate of, roughly, 0.05%.

Because the CJ system is so huge, I do not think a grant rate will do much. The idea of special rules around and after the election are interesting, but I still think the huge problem in this area is too little us of the clemency power, not too much.

Posted by: Doug B. | Dec 15, 2019 12:17:29 PM

There will always be criticisms and problems with Governors' exercises of their unilateral pardon power. A sad example is when outgoing Mississippi Governor Haley Barbour granted a pardon on his way out of office for a defendant who had multiple DUI convictions. The application had been screened by the state board, which recommended clemency. After that recommendation, the application sat on a shelf for months and was not reviewed again, until Governor Barbour signed the pardon in 2012. The problem was that during that unmonitored interim period, the applicant had gotten another DUI and killed someone in a vehicular homicide. At the time Barbour signed the pardon, the applicant was then in jail awaiting trial on the new charges. Those pending charges just fell thru an unintended crack in the Mississippi system, but there was tremendous public furor against Barbour over that pardon after he had left office. Unlike most of the rest of government (except the prosecutors'unilateral ability to seek an indictment from a Grand Jury, without the defendant getting to make any presentation to the Grand Jury), there are no checks and balances on the pardon power. By definition, it is the last check on unfair and wrong-headed prosecutions and sentences, and the decisions are made by a committee of one (the Governor) in some states. In other states, the applications are screened by the Board of Pardons and Parole, which makes a recommendation to the Governor. Despite it's imperfections, it is a necessary power in the criminal justice system, which is by its nature and complexity, inexact. So, there will always end up being a few widely criticized pardons, such as some of those made by outgoing Governor Matt Bevin, who is also not an attorney.

Posted by: James Gormley | Dec 15, 2019 6:30:09 PM

Perhaps it would make sense to limit the Governor to a total of 40 commutations during the period starting 1 week before the election and ending at the next swearing in. Alternatively, lame duck commutations might be subject to review by the legislature and/or the next Governor.

The common factor in both the Kentucky and Clinton abuses was that they happened after the election, greatly reducing the executive's incentive to act responsibly.

Doug, what do you think of allowing the Governor to overturn a conviction in the same way that the Courts do? A conviction overturned by the Governor, like one overturned by higher Courts, would allow the person to be retried.

The idea is to allow the Governor to take a middle ground position if he or she is concerned about a conviction. They could give the defendant relief while still having some political cover.

I think this would be particularly ideal in cases of apparent wrongful convictions.

Posted by: William C Jockusch | Dec 15, 2019 6:54:48 PM

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