Much has been written in the past several days about the pardons and commutations issued by former Governor Matt Bevin in his final days in office.

Those who question some of these pardons may be surprised to learn that both the application for pardon/commutation and supporting materials are accessible under the open records law.

https://ag.ky.gov/orom/2001/01ORD029.doc

My curiosity was piqued by Bevin's decision to commute the sentence of Leif Halvorsen, a death row inmate convicted, along with Mitchell Willoughby, of a triple homicide in Fayette County in 1983. Halvorsen's attorney petitioned for his sentence to be commuted to life without parole. Bevin commuted Halverson's sentence to life, and he will be eligible for parole.

I was a law student at the University of Kentucky College of Law, clerking for the future Fayette County Attorney, Margaret Kannensohn. Margaret encouraged me to attend the Halvorsen/ Willoughby trial. Halvorsen was represented by private counsel, Mike Maloney, and Willoughby was represented by a public defender. Both were convicted and sentenced to death.

Willoughby remains on death row.

Many years later, I reviewed an open records appeal filed by Associated Press reporter Charles Wolfe from then Governor Paul Patton's denial of Wolfe's November 2000 request to inspect "applications for executive pardons and/or commutations, plus correspondence supporting or opposing the applications."

https://apps.legislature.ky.gov/Law/Constitution/Constitution/ViewConst…

Former Attorney General Ben Chandler determined that Patton violated the open records law in denying the request, concluding that "Section 77, and the ends of justice, mandate disclosure of the application and supporting materials upon receipt in the Governor's Office, subject to the constitutional right to nondisclosure of certain types of private information."

I learned that because "'pardon and clemency decisions appear to be made well below the surface of public scrutiny,'" and have often been politicized, they are the subject of considerable criticism and widespread public debate.

I also learned that "'one of the propelling reasons for the call of [the 1890 Constitutional Convention] by the people'" of Kentucky was the perceived evil growing out of the exercise of the pardon power. Vol. l, p. 1339, Debates, Constitutional Convention 1890."

The constitutions of Kentucky adopted in 1792, 1799, and 1849 included the pardoning power but were silent on the issue of public disclosure of applications for pardon submitted to the Governor and the statement of reasons for his decisions thereon.

Prompted by concerns about abuses in the exercise of the pardoning power, in November, 1890, the delegates to the Constitutional Convention adopted the amendments to the Constitution that added the language: "And he shall file with each application a statement of the reasons for his decision thereon, which application and statement shall always be open for public inspection."

In 01-ORD-29, the Attorney General wrote:

"The comments of the delegates to the 1890 convention shed considerable light on their intention in adopting the amendments.

"Delegate Charles J. Bronston of Fayette County, championed the cause of openness. On November 17, 1890, he declared:

"Let the Governor publish those letters to the world; and let each and every man within the borders of Kentucky read them . . . . To prevent the indiscriminate application to the Governor . . . let it be understood that when a letter is written, it is not to go into a hole in the Executive Office, but it is to be spread on the record, and read by each and every man in the Commonwealth of Kentucky. Vol. l, p. 1325, Debates, Constitutional Convention 1890. And later:

"[T]ake the Executives out of the murky pool wherein these men, from personal interests, are constantly pouring into their ears false statements and making the law trampled under foot and degraded. Place them above it. Let them understand that they are to be held responsible. Vol. I, p. 1327, Debates, Constitutional Convention 1890.

"The amendments were seen as a way to "improve [the] people . . .[by] enlighten[ing] that people," Vol. l, p. 1252, and as a means of "purifying the evidence that may be brought before [the Governor]," Vol. l, p. 1288, "that those interested may know his reasons for so exercising this high and dangerous trust, and that he may be shielded from misrepresentations by those interested in securing his clemency." Vol. l, p. 1340.

"In sum, Delegate Jep C. Jonson of McLean County stated, "[T]he act of the Governor in making these remissions is a public act, and . . . no sort of private influence can properly enter into his consideration as to whether he ought to grant or withhold a pardon." Vol. 2, p. 1523."

Rejecting Patton's denial of Wolfe's request, the Attorney General held that Section 77 of the Constitution of Kentucky "mandates disclosure of the application materials, with the limited exceptions [certain private information], upon receipt, and the statement of reasons upon execution of the written instrument granting or denying pardon."

The open records decision was not appealed.

For those interested in a fuller understanding of the basis for the nearly 500 pardons and commutations issued by former Governor Bevin, the applications and application materials are accessible under the open records law.