A TV ad from a conservative super PAC attacks Democratic Kentucky Gov. Andy Beshear’s decision during the COVID-19 pandemic to release more than 1,800 prisoners convicted of non-violent or non-sexual felonies. But the details of the case featured in the ad don’t fit the ad’s narrative.
The ad from School Freedom Fund highlights the case of what the narrator says was a “predatory felon” whose early release by Beshear allowed the man to strike “again.”
The featured felon, Nathan Nickell, was charged in March 2021 with sexually assaulting a child under 12 years old, and other crimes. Where the ad goes astray, however, is in its implication that Nickell was in prison for a similar offense when he was released early from prison in August 2020. At that time, Nickell was serving an 18-month sentence for heroin possession and was due to be released on Feb. 17, 2021, according to the Louisville Courier Journal. (The story is behind a paywall.)
School Freedom Fund which is a super PAC run by Club for Growth, says it supports school choice, and is highly critical of school shutdowns during the COVID-19 pandemic, mask mandates and the alleged teaching of critical race theory. As Beshear seeks reelection in November, the group supports his opponent, Republican Kentucky Attorney General Daniel Cameron.
In its ad, the super PAC takes aim at Beshear’s decisions in April and August 2020 to release some inmates during the pandemic. His Aug. 25, 2020, executive order — which resulted in the release of Nickell — stated, “In order to prevent the spread of COVID-19 and to promote and secure the safety and protection of individuals in state custody and correctional staff, it is necessary to reduce the inmate population in the prisons and jails of Kentucky.”
Prisons were particularly hard-hit by the pandemic, and Kentucky was no exception. According to the Courier Journal, there were 8,187 cases of COVID-19 among inmates in state prison during the pandemic, and another 1,311 cases among prison staff. By the end of 2021, 48 inmates and eight prison staff members in Kentucky died from COVID-19.
Beshear decided to commute the sentences of inmates deemed “particularly vulnerable to the effects of COVID-19” and who had less than five years remaining on a sentence for non-violent, non-sexual offenses. Also eligible were any prisoners serving time for non-violent, non-sexual offenses who had less than six months remaining on their sentence — which included Nickell.
Kentucky was one of 24 states that released nearly 38,000 inmates early due to the pandemic, according to a Bureau of Justice Statistics analysis of the impact of COVID-19 on federal and state prisons.
At the request of Republican Kentucky state Rep. Jason Nemes, the Kentucky Administrative Office of the Courts prepared a report, released in October 2021, that found nearly a third of those released early by Beshear in 2020 were subsequently charged with felonies. A review of that data by the state agency Justice and Public Safety Cabinet found, however, that most of those charges came after the prisoners’ projected release, meaning they would have been back on the street anyway. Many of those felony charges were for drug crimes.
A subsequent review by the Louisville Courier Journal of those granted early release found that as of Nov. 4, 2021, when its story was published, just three of the prisoners granted early release by Beshear were convicted of violent felonies committed prior to their projected release date. Another five facing charges of violent felonies had cases pending.
The ad from School Freedom Fund glosses over some of those caveats, and seizes on one example to make the point that Beshear’s decision resulted in “far too many victims.”
The narrator in the ad begins: “Six months after Andy Beshear commuted the sentence of this predatory felon, Nathan Nickell struck again. Sexually abusing a young child, not even 12. One door opens, another door shuts. Another Beshear victim brutalized by the bad judgment of a criminal-coddling governor.”
A visual in the ad paraphrases from an Aug. 3 Lexington Herald-Leader story: “83-felony cases … serious crimes.”
That story noted that the AOC report found that among those who were released early, “83 felony cases involved serious crimes against people.” But the story then clarifies, “However, this data reflected charges, not convictions. Not everyone who is charged with a crime gets convicted.” And, as we said, it was determined those most of the charges were for crimes committed after the inmates were projected to have been released from prison.
The ad then includes a clip of Beshear defending his pandemic decision, saying that those who were released were “non-violent, non-sex offenders.”
The narrator of the ad concludes, “Beshear was wrong, and for far too many victims, it’s too late to make it right.”
But let’s look at the case of Nathan Nickell, who was released via the Aug. 25, 2020, executive order.
The Nickell Case
At the time of his release, Nickell was serving an 18-month sentence in the Campbell County Jail for possession of heroin, a first offense, and, according to the Louisville Courier Journal, he was due to be released on Feb. 17, 2021. The Courier Journal said Nickell had no prior violent or sexual criminal record.
Kentucky Department of Corrections data indicate that on March 30, 2022, Nickell was convicted of sexual abuse of a minor under 12 years old and other related crimes. He was sentenced to 15 years in prison. According to the online state Department of Corrections data, the crime was committed on March 12, 2021. That’s a little over six months after Nickell was released early, but about a month after he was set to be released if he had served his full sentence.
The Courier Journal noted that a copy of Nickell’s indictment alleged that he committed one count of sexual abuse on March 10, 2021, but that other counts were committed between Aug. 1, 2020, and March 10, 2021. In other words, the Courier Journal wrote, some of the alleged counts of sexual abuse could have been committed before he was originally set to be released.
In any case, the ad accuses Beshear of commuting the sentence of a “predatory felon” who then “struck again.” But at the time he was released, Nickell had never been convicted of a violent or sexual crime, and had less than six months remaining on a sentence for possession of heroin.
Beshear has been criticized by some for including for early release those convicted of wanton endangerment — a Class D felony in which someone “wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person” — and for third- or fourth-degree assaults that are classified as misdemeanors. But Nickell doesn’t fit that description.
In a response to the ad, Beshear spokesman Alex Floyd defended the pandemic commutation policy, telling the Courier Journal that Beshear “made hard decisions to keep Kentuckians safe.” He said of the ad, “It’s clear that even their cherry-picked examples don’t hold up to scrutiny.”
Floyd also said that Beshear was “following the Trump administration’s lead on COVID-era releasing of non-violent offenders near the end of their sentences.” In March and April 2020, Attorney General Bill Barr, who was appointed by Donald Trump, sought to expedite home confinement for some “vulnerable inmates” being held at several federal prisons “experiencing significant levels of infection.”
The Federal Bureau of Prisons released nearly 27,000 prisoners to home confinement due to the pandemic, an analysis by the Bureau of Justice Statistics found. But those are not considered expedited releases “because the prisoners were still under BOP authority, although the releases did reduce crowding in federal prisons,” the report states.
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