Some Controversial Kentucky Pardons Are Being Used to Push for a 'Victim's Rights' Bill

Courts struck down Marsy’s Law last year. Lawmakers want to bring it back.

Outrage over some controversial pardons by Kentucky's former governor is being used to resurrect a "victim's rights" law that the state's top court struck down last year.

After losing his reelection bid in November, Republican Gov. Matt Bevin approved more than 650 pardons and commutations before leaving office. Many of these were perfectly normal expressions of the governor's power. Some, for example, benefitted people who faced or already served heavy sentences for drug-related offenses. Some commuted the sentences of men on death row to life in prison.

But some others were highly controversial and led to calls for investigations. A convicted murderer pardoned by Bevin was a member of a family that had raised more than $20,000 for Bevin's re-election campaign at a fund-raiser. Another pardoned prisoner had been convicted of raping a 9-year-old; Bevin raised public ire by saying he didn't believe the evidence against the man because the child's hymen was still intact. (A popular myth holds that this proves no sexual intercourse occurred.)

Now a Republican state legislator is channeling public anger to try to pass a "Marsy's Law" to designate certain "rights" for crime victims.

Marsy's Laws are named after Marsalee Nicholas, a woman killed by her ex-boyfriend in 1983 after he was released from jail on bail. They have been pushed into law in several states, in campaigns funded by Nicholas' wealthy brother. They purport to expand the legal rights of people who are victims of crimes, granting them legal standing to demand protection from criminal defendants, restitution from criminals, notifications of court proceedings, and a say in parole hearings for those serving time.

Kentucky voters passed a version of Marsy's Law as a ballot initiative in 2018. But last June the state's top court tossed the law out because the wording of the statute wasn't included on the ballot. Instead, voters were simply asked, "Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?"

Lawmakers promised to try to bring the law back before the Assembly, and last week State Sen. Whitney Westerfield (R–Crofton) announced its resurrection in an op-ed for the Courier Journal. The piece doesn't actually mention Bevin's pardons and commutations, but it notes that Westerfield has updated the version passed in 2018 to "ensure victims have the right to be heard in and notified of the consideration of any pardon, commutation of sentence or granting of a reprieve."

The problem with Marsy's Laws is that they do a whole lot more than just notify crime victims of proceedings involving those charged and convicted of crimes. By giving victims a version of legal "standing" during the investigation and trial of crimes, these laws have the potential to tilt the balance against the defendants and violate their constitutional rights by treating them with the presumption of guilt rather than innocence. Allowing the alleged victim to have a say in a defendants' bail, for example, treats the defendants as though they're guilty when they haven't even been convicted.

As such, defense attorneys and the American Civil Liberties Union are largely opposed to these laws. David M. Ward, president of the Kentucky Association of Defense Lawyers, warned back in 2018:

The reason we have the procedural protections for the accused that we do is that our criminal justice framework rests on the presumption of the accused's innocence and the fact that, occasionally, people that are accused of a crime are not guilty. Identifying a "crime victim" at the outset of the proceeding presumes just the opposite. Take for example one category of cases—those involving self-defense. Do we really want a system where a person who claims this fundamental right of self-protection must defend themselves not only against the power of the State but also against the legal onslaught mounted by a victim who later, after a trial, turns out to be anything but?

Marsy's Laws sometimes allow alleged "crime victims" to control how much information about themselves is made public. In some states, police who shot people in the line of duty have used Marsy's Laws to conceal records about those violent encounters—including the officers' names—by identifying themselves as crime victims.

These laws also make it harder for prisoners to seek out appeals. This can have any number of potentially bad consequences for somebody trying to prove his or her innocence. As Matthew Harwood wrote in Reason,

Under the version of Marsy's Law passed in Florida last year, people convicted of noncapital crimes have only two years to complete all appeals, while those on death row have five years. The new limits are based on the victim's right to proceedings free of unnecessary delays. Under prior law, by contrast, there were limits on how long it could take to file a post-conviction action, Miller said, but there were no limitations on how long the post-convictions could last once initiated.

"For all of my clients, we got involved in the case one or two decades later," says the Innocence Project's [Seth] Miller, whose organization has gotten 18 people in Florida released from prison. "Is this going to be used by victims of crimes to prevent us from pressing post-conviction motions based on newly discovered evidence of innocence, because it's outside an arbitrary time frame set out in this new constitutional provision?"

But it's hard for politicians to go wrong telling voters that they're protecting the rights of crime victims, even if parts of the proposal replicate laws already on the books and even if it completely upturns the concept of presumed innocence.