Gov. Tony Evers signed an executive order last month restoring a formal commutations process for the first time since Wisconsin enacted its Truth in Sentencing law in 1999, but the order’s effect is presently unclear.
Critics of Evers’ order have been vocal, with Wisconsin Right Now claiming the order has “ended truth-in-sentencing in Wisconsin as we know it.” Sen. Van Wanggaard (R-Racine) said in an interview that Evers’ “goal is to reduce the prison population by just letting people out of prison; that’s not what prison was designed for.”
A commutation reduces a criminal sentence, substituting a milder punishment for what was originally imposed. Commutations generally apply to people in custody. The conviction remains on one’s record, but the person may be released after a shortened term.
The governor issues formal commutations, but in Wisconsin a parole board historically also had the power to shorten sentences.
Truth in Sentencing for the most part eliminated parole in Wisconsin. In 1999, it was one of just 14 states that wholly abolished early release by discretion of a parole board.
Before then, incarcerated individuals had the opportunity to petition a parole board for early release after completing a portion of their sentence, in proportion to the severity of the crime. Parole boards considered how incarcerated time was spent, the wishes of any victim, and the effect on the community.
Legally, a governor’s power to commute sentences was not affected by Truth in Sentencing. The power remains in the Wisconsin Constitution. But since Truth in Sentencing was adopted, its use dropped.
Republican Gov. Tommy Thompson was the last to commute a sentence, issuing seven commutations. He left office in early 2001. Regardless of political affiliation, no governor has issued any commutations since.
Evers’ executive order created a Commutations Advisory Committee, which will be headed by Chief Legal Counsel Mel Barnes as chair. Barnes also oversees the Pardon Advisory Board.
Cindy O’Donnell will serve as vice chair of the Commutations Advisory Committee. She previously served as deputy secretary of the Department of Corrections under Thompson, Gov. Scott McCallum, and Gov. Jim Doyle. O’Donnell serves on the Pardon Advisory Board as well.
So, will the floodgates open? According to some, fears of a commutation flood are likely overblown.
The executive order reinstating commutation may last only until Evers leaves office in early January 2027, as a new governor can order something different. What exactly can be done between the Advisory Board’s first meeting in June and the end of Evers’ tenure remains to be seen.
Natalie Lewandowski, director of Milwaukee Justice Center’s Pardon and Expungement Clinic, told Wisconsin Justice Initiative that the executive order is “exciting in theory.” But she noted several unknowns and the tight timeline before Evers leaves office.
MJC, through a network of volunteer attorneys, helps people prepare and file pardon and expungement applications.
A pardon forgives an offense and excuses a person from criminal punishment. It often involves restoring civil rights as well. In practice, it typically applies to those who have served their sentences and some amount of time has passed afterward. Evers, for instance, requires an individual to have completed their sentence at least five years ago for pardon eligibility.
While MJC is a listed resource in the governor’s executive order for those seeking commutation, the center has not worked with the prison population and does not currently have the infrastructure or budget to communicate with people who are incarcerated.
Lewandowski said pardon applications typically take two years to process. How many applications the Commutations Advisory Board will be able to evaluate by the end of the year is a big question. “I think there are still a ton of unknowns, she said.”
While Evers has issued more pardons than any of his predecessors, they are still difficult to obtain. And because of the five-year post-sentence-completion requirement, pardons do not directly reduce the prison population.
At a pardon hearing last year, O’Donnell called pardons an “extraordinary measure” on more than one occasion, before seeming to question whether an individual who bought one ounce of marijuana 13 years previously, had had enough time pass between his conviction and his application, notwithstanding that the man had the support of the judge who initially sentenced him.
WJI has previously sought how many applications the Pardon Advisory Board receives versus how many pardons are granted but was informed the board does not keep such records.
Under the executive order, to qualify for a commutation one must have completed at least half the imposed sentence or at least 20 years of a life sentence, cannot be serving a term for a sex offense or be required to register as a sex offender (currently or upon release), cannot have any unresolved criminal charges in any jurisdiction, and must be free of incidents of violent misconduct within the last five years of the current term of incarceration.
Notice must be made to the circuit court that imposed the sentence, the office of the district attorney that prosecuted the individual’s case, and any victim registered with the Office of Victim Services and Programs. Those persons can all provide feedback to the Commutations Advisory Board.
The board must consider the application, victim impact, public safety and the interest of justice, the applicant’s prison conduct report, and personal growth including education, rehabilitative programs, treatment, and work history.
The Community’s Shannon Ross has advocated for the resurrection of commutations with others over the years. He is working with the Justice Forward Coalition, a group of formerly incarcerated members working in community to improve the state’s criminal justice policy through strategic advocacy. Ross
“None of us knew it was coming when it did,” said Ross on a call with WJI about the executive order.
“We need to demonstrate success,” said Ross about both the applications and those who may have their sentences commuted.
Justice Forward Coalition is working to fill gaps in the network of those who have helped with pardons and expungement. The group released a commutations guide for those who are currently incarcerated and is mobilizing volunteers to help review applications before they are formally submitted.