FRANKFORT – Gov. Matt Bevin sure makes things interesting. He’s not afraid of controversy and he’s bursting with confidence about what he wants to do and thinks he can do.
It’s hard to keep count, but I believe we’re up to seven suits challenging Bevin’s use of executive power. I don’t think that’s all bad.
As Bevin and his attorneys correctly point out, his predecessors have often utilized executive orders to accomplish their goals under what Franklin Circuit Judge Phillip Shepherd said are a governor’s “very broad powers of reorganization.”
The question Shepherd and ultimately the state Supreme Court justices must determine is exactly how broad those powers are.
Bevin claims “absolute (legal) authority ... to disband any board in the state.” His attorneys argue the constitutional check on that authority is that the General Assembly must ratify or reject the executive actions next year when it reconvenes.
Those opposing Bevin’s disbanding of the University of Louisville and Kentucky Retirement System boards and a Workers’ Compensation Nominating Committee say Bevin can’t ignore statutes requiring terms of office and prescribed procedures for removing board members. They also argue Bevin is violating the constitution’s separation of powers.
The opponents are led by Democratic Attorney General Andy Beshear, whose father expanded Medicaid by executive order and reorganized some boards himself while he was governor. Bevin and his supporters try to portray Beshear’s actions as political and, let’s be honest, nothing happens in Frankfort on either side of the aisle without political consideration.
But Andy Beshear took an oath and if he genuinely believes Bevin is overstepping his authority then he has a duty to challenge Bevin.
Previous governors made liberal use of reorganization powers, but the extent of those powers has never been formally tested. In the end, the courts will decide those limits — and knowing what the limits are will be good for everybody, including this and future governors.
On another subject, Bevin should be commended for the Criminal Justice Reform Commission he created.
There is growing agreement in both parties that we should re-evaluate how we treat non-violent, non-sexual offenders and those who’ve paid their debts to society. It’s also driven by the rising costs of incarcerating so many people who represent little danger to the rest of us.
The commission should take a hard look at the state’s draconian Persistent Felony Offender law. Over the years “get tough on crime” lawmakers have steadily expanded the PFO statute to cover a long list of offenses and made it increasingly easier to apply.
As originally written 40 years ago the “three strikes” law targeted only serious offenders who’d actually spent time behind bars at least twice. But it’s possible now to apply a PFO sentencing enhancement to people who have never committed a violent crime and spent very little time in jail.
Supporters argue only a few people are sentenced as persistent felons. That’s true, but very large numbers of inmates are serving long sentences because they accepted plea deals rather than risk conviction as a PFO.
Often Commonwealth Attorneys running for re-election tout conviction rates of 90 percent or more. That’s usually disingenuous. Only something like 4 percent of all cases actually go to trial and the conviction rate for those is much, much smaller.
But prosecutors threaten defendants with PFO charges, which in some cases can turn a maximum sentence of three to five years into sentences of 15 years or more. Many are afraid to chance it. So we get 90 percent “conviction rates,” longer and more costly sentences, and little or no increase in public protection.
That ought to change.