Vol. 78, No. 2, February
To Forgive, Divine:
The governor's pardoning power
In Wisconsin, the power to pardon belongs exclusively to the
governor, who can exercise it essentially in any manner the governor
sees fit. For practical purposes, Wisconsin governors have been
restrained in exercising their power, having themselves established
procedures for applying for pardons, commutations, and reprieves, and
established screening panels to evaluate such applications.
by Donald Leo Bach
"To Err is Human, to Forgive Divine."
- Alexander Pope,
An Essay on Criticism
n light of the controversies caused by some
highly publicized presidential pardons, and legislative interest in
reestablishing the death penalty in Wisconsin, attention has been drawn
to the extent and nature of the pardoning process in Wisconsin. That
process can be summed up in a single statement: the power to pardon
belongs solely to one person - the governor - who can exercise it
essentially in any manner the governor sees fit.
The Governor's Pardoning Power
The governor's pardoning power is granted in the Wisconsin
Constitution. Article V, section 6 of the Wisconsin Constitution
"Pardoning Power. Section 6. The governor shall have
power to grant reprieves, commutations and pardons,1 after conviction,2 for
all offenses, except treason and cases of impeachment, upon such
conditions and with such restrictions and limitations as he may think
proper, subject to such regulations as may be provided by law relative
to the manner of applying for pardons... He shall annually communicate
to the legislature each case of reprieve, commutation or pardon granted,
stating the name of the convict, the crime of which he was convicted,
the sentence and its date, and the date of the commutation, pardon or
reprieve, with his reasons for granting the same."3
In 1833 in United States v. Wilson, Chief Justice Marshall
described the power to pardon as: "... an act of grace, proceeding from
the power entrusted with the execution of the laws, which exempts the
individual, on whom it is bestowed, from the punishment the law inflicts
for a crime he has committed."4
The pardoning power granted by the Wisconsin Constitution resides
solely with the governor, and there are no constitutional standards the
governor must follow for granting or denying clemency. The Wisconsin
Constitution gives the governor the unfettered discretion to grant or
deny (and condition) reprieves, commutations, and pardons for any reason
This precept is succinctly stated in 59 Am. Jur. 2d Pardon and
Parole § 44 (2002):
"Any executive may grant a pardon for good reasons or bad, or for any
reason at all, and the act is final and irrevocable. Even for the
grossest abuse of this discretionary power the law affords no remedy;
the courts have no concern with the reasons for the pardon. The
constitution clothes the executive with the power to grant pardons, and
this power is beyond the control, or even the legitimate criticism, of
the judiciary. Whatever may have been the reasons for granting a pardon,
the courts cannot decline to give it effect, if it is valid upon its
face, and no court has the power to review grounds or motives for the
action of the executive in granting a pardon, for that would be the
exercise of the pardoning power in part, and any attempt of the courts
to interfere with the governor in the exercise of the pardoning power
would be a manifest usurpation of authority, no matter how flagrant the
breach of duty upon the part of the executive." [Footnotes omitted]
The Wisconsin Legislature has enacted few laws relating to the pardon
application process and then only for persons currently serving
sentences of one year or more. These laws include:
1) the requirement that service of notice of the pardon application
be made on the trial judge, the district attorney, and the victim (or
victim's family member). Publication of the notice in the county where
the offense was committed also is required.5
Donald Leo Bach, U.W. 1974, was Gov. Tommy G.
Thompson's first legal counsel. He also held the position of
governor's office director. He later served in several other
appointed positions in the Thompson administration, including as chair
of the Parole Board and as deputy secretary of revenue. Bach is a
shareholder in the Madison law firm of DeWitt Ross & Stevens where
he practices litigation, environmental, and administrative law. He
formerly served as chair of the State Bar Bench – Bar Committee
and currently heads up its Survey Subcommittee. He also is a member of
the Judicial Commission, which conducts investigations for review and
action by the Wisconsin Supreme Court regarding allegations of
misconduct or permanent disability of a judge or court commissioner.
2) requirements for the contents of the application, including proof
of service and publication of the notice; certified copies of the
indictment or information; a sworn statement of the facts and reasons on
which the application is based; statements, if obtainable, of the judge
and district attorney; records of conduct while incarcerated; and
victim's statement, if submitted, on the application.6
3) authorization and procedures to enforce a conditional
Types of Executive Clemency
The pardoning power takes three forms:
1) Pardon. A pardon is an act of official
forgiveness that restores all of the convicted person's rights that were
lost due to conviction for an offense. Thus, a pardon restores rights
that were lost with a felony8 conviction,
including the right to vote,9 the right to
perform jury duty,10 the ability to possess
firearms,11 the right to hold public office
(including the right to hold a notary public commission),12 and the right to hold various licenses (such as
alcohol and tobacco licenses) or be granted certain statuses.13
Some other examples of restored rights include: the right to obtain a
private detective license14 or a private
security permit15 (that is, security guard
permit) and the ability to become a law enforcement, jail, or secure
detention officer.16 Additionally, unless a
pardon is granted, the general prohibition against discriminating
against convicted persons in employment does not apply if the
circumstances of the offense substantially relate to the circumstances
of the job or licensed activity (for example, a nonpardoned person may
not be bondable when bonding is required or where installation of
burglar alarms is involved, among other things).17 Further, under Wisconsin's Caregiver Law,18 individuals who have been convicted of certain
offenses are generally barred from working in medical, childcare, and
nursing home facilities (unless they are cleared through the
"rehabilitation review" process outlined in the statutes).19
Theoretically a pardon can also relieve an offender from Wisconsin's
enhanced penalties for repeat offenders if "such pardon [is] granted on
the ground of innocence."20 However, since
under policy set by governors in recent times, the Pardon Advisory Board
typically does not, and will not, engage in "retrying the crime," this
statute is of small solace to the repeat offender. Additionally, a
pardon prevents another from using the fact that a person has been
convicted of a crime to attack his or her credibility as a
witness.21 The above list is not meant to
When a person completes his or her sentence, the person automatically
regains "his or her civil rights" as specified by the Department of
Wis. Stat. section 304.078 provides that, except as provided in sub.
(3), every person who is convicted of a crime obtains a restoration of
his or her civil rights by serving out his or her prison term or
otherwise satisfying his or her sentence. The certificate of the DOC or
other responsible supervising agency that a convicted person has done so
is evidence of that fact and that the person is restored to his or her
civil rights. The DOC or other agency must list in the person's
certificate rights that have been restored and that have not been
Subsection (3) of Wis. Stat. section 304.078 provides that if a
person is disqualified from voting under section 6.03(1)(b), his or her
right to vote is restored when he or she completes the term of
imprisonment or probation for the crime that led to the
disqualification. The DOC or, if the person is sentenced to a county
jail or house of correction, the jailer shall inform the person in
writing when his or her right to vote is restored under this
The term "civil rights" in section 304.078 has traditionally been
construed to be limited to the right to vote.23 The statute was recently amended by 2003 Wis.
Act 121 (effective Feb. 21, 2004) with the addition of subsections (1)
and (3). The latest amendments were intended solely to address the issue
of the right to vote and, specifically, to mandate that a person be
informed of the restoration of the right to vote to "balance" the Act's
other requirement, in Wis. Stat. section 973.176(2), that a convicted
person be informed at sentencing of the loss of the right to vote.
Therefore, the amendments were not intended to change or expand the
scope of the term "civil rights" beyond its traditional and longstanding
Typically, the only rights the DOC specifies as restored are the
right to vote and the right to serve on a jury.24 Thus, a person must receive a pardon to regain
the right to hold public office25 and the
right to possess firearms26 and to be
relieved from other disabilities imposed under law. Further, while a
pardon restores rights, a pardon does not expunge, vacate, or erase the
conviction nor prevent a criminal record from being discovered or being
Gov. Doyle's Application for Executive Clemency form expressly so
"Pardon: This restores all of the person's rights which were
lost due to the conviction. A pardon does not expunge, erase, or
seal your criminal record." (Emphasis supplied)
This is consistent with the practice and policy of recent Wisconsin
governors and reflects the "modern view." As stated in 59 Am. Jur. 2d
Pardon and Parole § 53 (2002):
"By the modern view, the granting of a pardon is in no sense an
overturning of a judgment of conviction by some other tribunal, but
rather is an executive action that mitigates or sets aside the
punishment for a crime. Pardons do not erase the fact that one was once
convicted of a crime; instead, pardons eliminate any further effect of
having been convicted. ... A pardon does not substitute a good
reputation for one that is bad, does not obliterate the fact of the
commission of the crime, does not wash out the moral stain, and does not
wipe the slate clean, but rather involves forgiveness, not
"An older view, which had come under significant criticism, stated
that a pardon reached both the punishment prescribed for the offense and
the guilt of the offender, relieving the punishment and blotting out of
existence the guilt of the offender to such an extent that in the eye of
the law the offender is as innocent as if he or she had never committed
the offense. However, these statements have since been characterized as
generalizations and are not universally accepted, recognized, or
approved." [Footnotes omitted]
In his 1963 article, "Executive Clemency in Wisconsin," David
Adamany, a former pardon counsel, reflected the "older view," at least
in the context of the then constitutional prohibition against holding
"Both Governor Nelson and Governor Reynolds have regarded the pardon
power as restoring the right to hold public office. Each has granted
pardons for that express purpose. This gubernatorial construction
implies that an executive pardon goes to the conviction itself as well
as to its results. This view, though a minority view in the country,
seems an especially reasonable one in Wisconsin since it provides the
only avenue short of constitutional amendment for the restoration of the
right to hold an `office of trust or profit' in the state
Thus, at least for the limited purpose of restoring eligibility to
run for public office under the then constitutional prohibition in
article XIII, section 3, one opinion was that a pardon did "go to the
conviction itself as well as its results." (Article XIII, section 3 was
substantially amended in 1996 and, among other changes, now recognizes
that a pardon does restore the right to run for office.)
However, in his 1973 article, "Executive Clemency in Wisconsin:
Procedures and Policies,"28 Bruce R. Bauer
strongly implies to the contrary that Wisconsin governors follow the
Since recent governors have clearly followed the majority rule, the
matter is at rest for the present; this is not to say a governor could
not make an exception and issue a pardon "on the grounds of innocence"
and so cite the same when newly discovered evidence unequivocally shows
a person was wrongfully convicted. However, one would expect that such
instances would be extremely rare and that the governor would first
require exhaustion of all available judicial remedies before accepting
an application for a pardon based on innocence. Further, since solely
the governor "sets the rules" under article IV, section 6, the issue is
in any case essentially not reviewable by the courts. Finally, while it
is stated that a pardon does not wash out the moral stain, obviously the
grant of a pardon does involve some implied degree of approbation by the
governor and lessens the stigma of the conviction.
If a convicted felon seeks to have the conviction set aside after
appeal rights have run, his or her recourse is to the court, usually
under one of the following statutes: Wis. Stat. section 974.06 (motion
to set aside or vacate sentence on grounds specified therein); Wis.
Stat. section 974.07 (motion based on DNA testing; can be made at any
time after conviction); and Wis. Stat. sections 805.15 and 805.16
(motion for new trial).
In sum, a pardon forgives the ongoing penalty (the "disability") of
the conviction of a crime, not the crime itself. It is truly
encapsulated in the quote "forgiveness does not change the past, but it
does enlarge the future."29
2) Commutation. The second type of executive
clemency is commutation. Commutation modifies a person's sentence, that
is, it shortens the sentence or makes consecutive sentences run
concurrently. It only applies to persons currently serving a
3) Reprieve. The third type of executive clemency is
a reprieve. A reprieve suspends a person's sentence for a period of
time, allowing the person to complete it at a later date. Like a
commutation, it only applies to persons currently serving a sentence.
Since there is no death penalty in Wisconsin, reprieves are essentially
While the governor has unfettered discretion to exercise pardoning
powers, Wisconsin governors have been very judicious in their exercise
of that power because of potential political fallout, public safety
concerns, and recognition that a lenient practice in granting pardons
would result in a veritable flood of applications.30 No governor wants to issue a pardon only to have
that person promptly commit another crime; either the governor would be
criticized as being "soft on crime" or the governor's judgment would be
questioned, or both. Similarly, certain crimes are so abhorrent to the
public that, absent extremely compelling circumstances, no governor
would think of granting clemency to persons who have committed those
crimes. Finally, time constraints, staff budgeting, and other duties
mandate that the grant of clemency be the exception, not the rule.
Indeed, in the last 25 years, Wisconsin governors have granted only
604 pardons, 46 commutations, and no reprieves. (See Figure 1)
The Pardon Advisory Board and Governor's Rules
Dreyfus to Doyle
To prevent the governor from being inundated with applications, to
insulate the governor during the application process, and to provide a
system that carefully evaluates the merits of each application, recent
governors have established a screening panel or board by executive
order.33 Typically, the governor's legal
counsel (or other designee) chairs the board.
Along with establishing a Pardon Advisory Board, the governor can
promulgate a set of rules or procedures for applying for a pardon to
supplement those established by the legislature. Typical practice has
been to issue rules that:
1) limit applications for pardons, commutations, and reprieves to
persons convicted of felonies (although a waiver for a misdemeanor may
be granted in extraordinary circumstances);34
2) limit the ability of currently incarcerated persons and those
still under supervision to obtain clemency; for example, requiring them
to obtain a waiver by showing extraordinary circumstances before
allowing them to apply;
3) mandate a certain passage of time after completion of sentence
before a pardon application can be made;35
4) set a minimum time period for reapplying if an application for
clemency is denied.36
Typically, the rules also provide for notice to, and input from, the
victim, the district attorney who prosecuted the case, and the judge who
entered the conviction judgment. Further, the DOC Records Center is
asked to provide information concerning the person's conduct while the
person was serving his or her sentence.
The Pardon Advisory Board performs many roles for the governor.
First, it evaluates the merits of the application and makes a specific
recommendation to the governor whether to grant or deny the application.
Second, it tests the applicant's sincerity and credibility in a
hearing-type proceeding in which the applicant makes a presentation and
is subject to questioning, often pointed and very blunt, by board
members. Third, it provides insulation for the governor in cases in
which the crime is very abhorrent or socially unacceptable, the
circumstances do not merit the pardon, or a governor's acquaintance or
supporter asks for a pardon that is not justified.37
The process is fairly straightforward. After a complete application
is filed with the governor's office, the matter is scheduled for a
hearing before the Pardon Advisory Board. Typically, it takes several
months for a hearing to be held because of the great number of pardon
applications. Each applicant is given approximately 15 to 30 minutes to
make his or her case and answer questions. After all the presentations
are made, the board votes on recommendations to the governor.
The board's recommendations usually are delivered personally to the
governor by the governor's legal counsel. The governor reviews the file
and the board's recommendation for each case, discusses the case with
the legal counsel, and then decides whether to grant clemency. If
clemency is denied, the applicant is notified by letter, which usually
states a reason for the denial. If clemency is granted, the governor
signs a formal certificate, a copy of which is filed with the secretary
of state. Current practice is to also send the original certificate to
the secretary of state, who countersigns it, applies the Great Seal of
the State of Wisconsin, and returns it to the governor's office for
delivery to the successful applicant.
Factors on which Pardons are Evaluated
Several factors, which incorporate basic principles of common sense,
are taken into account by the Pardon Advisory Board and by the governor
in deciding whether to grant executive clemency. Any person
contemplating applying for clemency must pay attention to each of these
1) Nature of the crime. Certain crimes are so
serious and so objectionable that it would be difficult, if not
impossible, to forgive the punishment. Persons convicted of extremely
violent crimes, aggravated crimes against security and persons, crimes
against young children, or multiple serious crimes (especially those
occurring over a period of time) usually have little chance of securing
a pardon. (See Figure 2)
Types of Crimes for which Pardons were Issued (1979-2003)
2) Passage of time since conviction. This very
important factor not only helps establish whether there is a risk that
the person will revert to criminal conduct but also provides a sense of
whether a significant enough punishment has been imposed for the
criminal transgression. The more time that has passed between the
conviction (and completion of sentence) and the clemency application,
assuming exemplary conduct during that time, the better.
3) Punishment served without problem. Early release
from probation is an asset. Fully meeting all conditions of supervision
shows an acceptance of the consequences of the crime. Bad conduct in
prison or under supervision shows the opposite and may indicate that the
applicant did not or does not fully understand the significance of his
or her actions.
4) Spotless conduct since the crime, plus substantial
indication of a productive life, that is, a complete turnabout from
criminal conduct. This is often referred to as the "you must
have lived like a saint" factor. An applicant must demonstrate that he
or she has turned his or her life around by becoming a productive member
of society. There simply can be no substantial contact with law
enforcement authorities after the criminal conviction. Today, a person's
criminal, civil, and driving records are easily obtained.38 Even if a crime was committed 20 years ago and
the person has led a mostly exemplary life since, a recent conviction
for operating a motor vehicle while intoxicated or disorderly conduct
can be enough to kill a clemency application.
5) Need. This factor is critical. Both the Pardon
Advisory Board and the governor are very reluctant to forgive the
consequences of a serious criminal conviction simply because "I want to
go deer hunting, but cannot possess a gun"39 or "I want my record cleared." Typically, to
justify the grant of forgiveness, there must be a socially beneficial
activity (for example, the granting of a professional license necessary
to embark on or to continue in a career, a job promotion, a need to be
bonded, or the like) that the conviction impedes.40
6) Support of the community. A pardon applicant
typically will, and should, submit letters of support from community
leaders favorable to the application. A letter from a local law
enforcement official, a community leader, a coworker, an employer, or a
person who holds a position of respect and trust in the community who
knows the applicant is very important.
This often presents a dilemma for the pardon applicant. In many cases
even the applicant's best friends and coworkers may not be aware that
the applicant has a felony conviction.41 To
secure the support of persons who could have some impact on the pardon
process, an applicant has to reveal that he or she is a convicted felon
and risk the chance this revelation will have a detrimental effect on
future relationships. An applicant also must face having to reveal to
friends and family a conviction that happened years ago. It is
especially challenging for applicants to tell their children that their
father or mother was convicted of a serious crime and even served time
in prison. Further, the pardon process is a process open to the public
and the press. Anyone can review the pardon application and the
materials submitted with it. Occasionally, pardon applications receive
substantial press coverage.
7) Chance of returning to criminal conduct. This
factor is more or less an evaluation of all the other factors.
8) Position of the district attorney. Since the
rules require that the district attorney who prosecuted the crime be
notified, the district attorney has the opportunity to make comments to
the Pardon Advisory Board (and therefore to the governor) on whether the
pardon should be granted. Typically, a district attorney will either not
respond or will respond in a neutral fashion. However, a district
attorney's negative response can have a very adverse impact on the
pardon process; conversely, a positive response has a positive
9) Position of the judge. Similarly, the sentencing
judge is also notified. His or her comments can have a substantial
impact, with positive comments being very beneficial and negative
comments being very detrimental.
10) Input from victims and other people. Letters or
testimony from victims, a probation agent, or other members of the
public, all can and do affect the pardoning decision process, with
letters and personal appearances by victims having a great potential
positive or negative impact.
11) Sincerity of the applicant/attention to the pardon
application. The pardon application presents the Pardon
Advisory Board with its first look at the applicant and the applicant's
qualifications under the above factors. The applicant's personal
appearance at the hearing before the board presents the board with an
opportunity to judge the credibility and sincerity of the applicant. The
applicant must take both the application and the hearing very
Only the governor wields the power to pardon in Wisconsin. If, as
Oscar Schindler said, "The greatest power of all is the power to
forgive," then the governor of Wisconsin possesses great power indeed.
How the governor exercises that power is solely up to the governor. It
is a power jealously guarded by governors and their legal counsels for
exactly that reason.42
1For easy reference, and consistent
with the Wisconsin Constitution's naming convention, the power "to grant
reprieves, commutations and pardons" will be referred to under the
rubric of "pardon," "pardons," or "pardoning power." This power is also
called "executive clemency."
2Compare to Article II, Section 2
of the U.S. Constitution, which grants the President the power to "grant
Reprieves and Pardons for Offences against the United States, except in
Cases of Impeachment." The President's pardoning power is not restricted
to exercise after conviction.
3Whether the governor of Wisconsin
has the power under Wisconsin Constitution article V, section 6 to grant
relief from any disability imposed under Wisconsin law for a federal (or
non-Wisconsin) conviction is an open question. See Swan v.
LaFollette, 231 Wis. 2d 633, 605 N.W.2d 640 (Ct. App. 1999). While
there is logic to the argument that the Wisconsin governor should be
able to relieve any disability imposed by Wisconsin law for a conviction
of a crime in federal or another state's courts, comity (and perhaps
common sense) dictates otherwise. Undertaking such action puts the
governor on the slippery slope of evaluating the nature, context, and
impact of another jurisdiction's criminal pronouncement. Further,
granting relief from disabilities for non-Wisconsin crimes would de
facto invade the right of the President and other governors (or
other state pardoning powers) to exercise their respective pardoning
capacities. Finally, granting relief from disabilities imposed for
convictions of crimes of other jurisdictions potentially creates a
situation in which the Wisconsin governor grants clemency but the
originating government (state or federal) denies the same. The rule
should be that the power to pardon follows the power to prosecute and
convict; that is, pardoning power should be limited to the jurisdiction
in which the conviction arose.
432 U.S. (7 Pet.) 150, 160 (1833).
Perhaps in a slight exercise of hyperbole, Wisconsin Supreme Court
Justice Christian Doerfler went much further: "The power expressed in a
pardon is the most sacred and godlike exercised by man in his capacity
of dispensing justice on earth." State ex rel. Rodd v. Verage,
177 Wis. 295, 351, 187 N.W. 830 (1922) (Doerfler, J., dissenting).
5Wis. Stat. § 304.09(3).
6Wis. Stat. § 304.10. The
governor is required by statute to "make a reasonable attempt to notify
the victim of a pardon application, as provided under s. 304.09 (2) and
(3)." Wis. Stat. § 950.04(1v)(ym). Addresses of victims and their
family members are not obtainable under Wisconsin's Public Records Law.
If the victim's statement is made public, the address must be deleted.
Wis. Stat. § 304.10(3).
7Wis. Stat. §§ 304.11,
8The current definition of a felony
is a crime punishable by incarceration in a state prison. Wis. Stat.
§ 939.60. Seealso Wis. Stat. § 973.02.
9See Wis. Const. art. III,
§ 2(4)(a); Wis. Stat. § 6.03(1)(b). A court must inform the
convicted person upon sentencing or placement on probation of his or her
loss of the right to vote. Wis. Stat. § 973.176. The right to vote
is restored when the prison term or probation is completed. See
Wis. Stat. § 304.078.
10Wis. Stat. § 756.02.
11Wis. Stat. § 941.29; 18
U.S.C. § 922(g).
12Wis. Const. art. XIII, §
13See Wis. Stat.
§§ 125.04(5)(b) (alcohol) and 139.34(1) (tobacco).
14Wis. Stat. §
15Wis. Stat. §
16Wis. Stat. § 165.85; Wis.
Admin. Code § LES 2.01(1)(c).
17See Wis. Stat. §
18Wis. Stat. §§ 48.685,
19See Wis. Stat.
§§ 48.685, 50.065; Wis. Admin. Code § HFS 12.
20Wis. Stat. §
21See Wis. Stat. §
906.09 (and numerous similar acts in other state and federal
22Admittedly Wis. Stat. section
304.078, originally passed as Wis. Stat. section 57.078 in 1947 (without
anyone appearing, reporting, or voting against it), and amended as
recently as 2003 Wis. Act 121, does invade to some extent the exclusive
power of the governor to issue clemency. Indeed, at the time of its
initial passage, E.E. Brossard, the revisor of statutes, published an
article opining that the governor's pardoning power is not exclusive and
that the legislature shares power to act in the area. E.E. Brossard,
Restoration of Civil Rights, 1946 Wis. L. Rev. 281. However,
this view is contrary to the holding of the Wisconsin Supreme Court in
In re Webb, 89 Wis. 354, 62 N.W. 177 (1895), which, citing the
language of Wisconsin Constitution article V, section 6, states that the
power to grant reprieves, commutations, and pardons is solely vested in
the governor. Further, the framers of the Wisconsin Constitution did
contemplate the role of the legislature in terms of pardons,
specifically limiting that role in article V, section 6 to passing
regulations relating to the manner of applying for pardons and nothing
23See, e.g., 61 Wis. Op.
Att'y Gen. 260 (1972); 63 Wis. Op. Att'y Gen. 74 (1974); Roehl v.
United States, 977 F.2d 375 (7th Cir. 1992).
24The current DOC certificate
also indicates that the ability to possess firearms and the right to
hold office are not restored unless a pardon is obtained from the
governor (and, in the case of firearms, if the pardon does not restrict
or prohibit possession of firearms).
25A person serving in office who
has been convicted of a felony loses his or her right to the office.
Interestingly, even an immediate pardon does not restore the incumbent
to the office; only a reversal of the judgment and conviction will do
so. Wis. Stat. § 17.03(5). A pardon would allow the person to run
for the office again.
26Wis. Stat. section 941.29 makes
it a felony for a convicted felon to possess firearms. Possession of
pepper spray by a felon is prohibited by Wis. Stat. section
941.26(4)(l). Whenever a court imposes a sentence or places a defendant
on probation for a felony conviction, the court must inform the
defendant about Wis. Stat. section 941.29. See Wis. Stat.
§ 973.176(1) (formerly Wis. Stat. § 973.033). 18 U.S.C. §
922(g) makes it a federal crime for any person "who has been convicted
in any court of, a crime punishable by imprisonment for a term exceeding
one year" (as that phrase is defined in 18 U.S.C. § 921(a)(20)) to
"ship or transport ... or possess ... any firearm or
ammunition." 18 U.S.C. § 921(a)(20) provides that "[a]ny conviction
... for which a person has been pardoned or has had civil rights
restored shall not be considered a conviction for purposes of this
chapter, unless such pardon ... or restoration of civil rights
expressly provides that the person may not ship, transport, possess, or
2736 Wis. B. Bull. 54, 60 (Oct.
281973 Wis. L. Rev. 1154.
29Attributed to Paul Boese. Since
a pardon does not expunge or delete the crime, if asked, a convicted
person must still answer that he or she was convicted of a crime. This
question (sometimes limited to felonies) routinely appears on employment
applications, security questionnaires, license applications, and other
forms. The person must still answer in the affirmative, but then may
add: "Pardoned by Wisconsin governor on (date)."
30The Wisconsin Office of Justice
Assistance reports there were 167,613 adult arrests for "index offenses"
(murder, rape, robbery, assault, theft, and so on) in Wisconsin in 2003.
Wisconsin Office of Justice Assistance, Preliminary Crime and Arrests In
Wisconsin (May 2004). Theoretically, even if only a small fraction
result in a criminal conviction, each conviction could ultimately result
in a pardon application. The Department of Corrections reports that
21,646 persons were incarcerated in Wisconsin prisons in 2003.
31The information in Figure 1 is
from the Wisconsin Secretary of State and reports filed with the state
senate for 1979-2004 pursuant to the Wisconsin Constitution, article V,
section 6. There are some inconsistencies in the numbers (and perhaps
even in the description of the crime) filed with the Secretary of State
compared to the annual reports. Accordingly, some editorial judgment was
necessarily applied to compile the charts from the two sources.
32This category covers a wide
variety of crimes, including battery, bribery, arson, welfare fraud,
filing false nomination papers, soliciting prostitution, reckless
endangerment, mayhem, tax crimes, bigamy, manslaughter, gambling-related
crimes, and so on.
33Gov. Dreyfus originally created
the Pardon Advisory Board on March 6, 1980, through Executive Order 39;
all governors since have continued its existence. State of Wisconsin,
Blue Book 326 (2003-04). Prior governors relied on a pardon counsel who
also performed the same function. The current Pardon Advisory Board
consists of seven members appointed by Gov. Doyle, including a
representative from the DOC and a representative from the Department of
34See Wis. Const.
article XIII, § 3 (person is ineligible to hold public office if
convicted of a "misdemeanor involving a violation of public trust"). It
is an example of when a waiver to consider a misdemeanor might be
35Gov. Doyle's current policy is
five years; a waiver can be requested.
36Gov. Doyle's current policy is
37The governor can simply point
to the board's recommendation as justification for denial in such
38For example, the Wisconsin
Circuit Court Consolidated Court Automation Program (CCAP), while not
totally complete, allows easy and quick access to criminal, traffic, and
civil filings. The Web site is http://wcca.wicourts.gov.
39Formerly a potential avenue
existed to restore the ability to possess a gun without the need to
obtain a pardon. That avenue is still reflected in both state and
federal law but has been nullified by the U.S. Congress.
Wis. Stat. section 941.29 (prohibiting a felon from possessing a
firearm) refers to this alternative:
(5) This section does not apply to any person specified in sub. (1)
who: . . .
(b) Has obtained relief from disability under 18 U.S.C. §
18 U.S.C. § 925(c) provides a procedure by which a felon can ask
the federal government to grant relief from the disability with respect
to firearms. However, as attorney William Coleman, Office of Legal
Counsel for the federal Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) confirmed, Congress has since 1986 specifically
prohibited the expenditure of funds to grant this relief, with the
latest prohibition contained in Pub. L. No. 108-199.
Wis. Stat. section 941.29(5) also provides that the prohibition
against possessing firearms does not apply to any person who:
(a) Has received a pardon with respect to the crime or felony
specified under sub. (1) and has been expressly authorized to possess a
firearm under 18 U.S.C. app. 1203 ...
This provision references a portion of the U.S. Code that no longer
exists; in 1986 it was repealed by Pub. L. No. 99-308, and replaced by
18 U.S.C. § 921 et seq.
40There have been some exceptions
to this rule but they are rare; indeed, a lack of "need" is often cited
as the reason a pardon was denied.
41Sometimes this even applies to
the employers, especially those who do not use pre-employment
questionnaires or perform pre-employment background criminal checks.
42Thanks to Rick Hendricks,
DeWitt Ross & Stevens' librarian and superb researcher (and also a
noted paranormal investigator) for his research and compiling of data at
the Wisconsin Senate and Secretary of State's Office; Mary T. Cuppy for
manuscript preparation; and the following persons who reviewed this
article: Raymond P. Taffora, Arvid Sather, Chad Taylor, Ladd Wiley, and
Juan Colas, all former legal counsels to Wisconsin governors; Stan Davis
and Amy Kasper, legal counsels to Gov. Doyle; Kevin Potter, legal
counsel to the Wisconsin DOC; Ron Slansky, attorney, Wisconsin
Legislative Council; Michael G. Dsida, attorney, Wisconsin Legislative
Bureau; attorney Bruce Rosen; assistant attorney general Marguerite
Moeller; Prof. Keith Findley, codirector, Wisconsin Innocence Project,
Frank J. Remington Center, U.W. Law School; and Meridith J. Ross,
clinical professor of law and director, Frank J. Remington Center, U.W.