Earlier this month, Wisconsin Gov. Tony Evers signed two executive orders: Executive Order #287, creating an advisory board to review applications for commutations, and Executive Order #288, creating a specific process for commutation requests from people who were sentenced to life imprisonment while they were juveniles.

The Wisconsin Constitution grants the governor the power to issue commutations and pardons, but unlike the pardon power, which Gov. Evers has exercised since creating a Pardon Advisory Board in 2019, the commutation power has not been used in Wisconsin for 25 years.

While the process outlined in EO 287, Relating to the Creation of the Governor’s Commutation Advisory Board, is broadly similar to the existing pardon process, the forms of relief in the two processes are different and at this time mutually exclusive.

The current pardon eligibility criteria require an applicant to be removed more than five years from the completion of any criminal sentence, while a commutation shortens or modifies a sentence being served by someone currently incarcerated.

Due to the difficulty that eligible prisoners might have with accessing the records and resources required to complete an application for commutation, this process is one in which attorney assistance can make a critical difference for applicants who may not have much time in which to ask that their sentences be commuted.

Since the commutation process, like the pardon process, is largely at the discretion of the governor, the window of opportunity for requesting commutations could close again after this year’s election.

Criteria for Commutation

The applications for commutations and the information available on the governor’s website lay out the current eligibility criteria which applicants must meet.

• Any applicant, whether for an adult sentence or a juvenile sentence, must be at least halfway through their prison term or have served 20 years of a life sentence – though, importantly, applicants cannot be in the last year of their current sentence.
• Juvenile life sentence commutations additionally require that the applicant was no older than 19 at the time of their conviction, and that they were charged and convicted as an adult.
• Any applicant must have no open cases or warrants in any jurisdiction, including other states and federal cases.
• Applicants on the sex offender registry are categorically barred, as are applicants serving a sentence for a conviction for sexual assault, physical abuse of a child, sexual exploitation of a child, trafficking of a child, incest, or soliciting a child for prostitution.
• Finally, applicants cannot have had any “incidents of violent misconduct” within the last five years.

Applicants are also required to obtain and submit several documents along with their applications, similar to the pardon process: they must submit certified copies of the criminal complaint, information, judgment of conviction, and sentencing transcript for the conviction for which they are seeking a commutation.

Requiring certified copies of the sentencing transcript specifically is a change from the similar pardon process, as is the requirement that applicants also submit letters of recommendation or support (which are only encouraged for applicants for pardons).

Applying for Commutation versus Pardon

The application for a commutation is broadly similar to the current pardon application, in that it requires applicants to share information about the crime that led to the conviction for which they are seeking a commutation, their experience of rehabilitation, and the overall positive steps that they have taken while serving their sentence.

Like the pardon application, the commutation application also asks applicants to provide extensive information about their overall criminal history, including interactions with law enforcement which did not necessarily lead to arrests or charges.

Applicants are also required to disclose any disciplinary history and misconduct while serving their sentence.

One important distinction is that the commutation application asks about reentry prospects and encourages applicants to share any supporting documents that they might have from reentry organizations, potential employers, or other resources that they would draw on if their sentence were commuted.

Unknowns

The commutation system is obviously very new, and there are several unknown factors despite the broad similarities with the pardon process and the Pardon Advisory Board.

Maybe the most consequential unknown is that neither the applications themselves nor the governor’s website currently offers estimates as to the processing time for an application for commutation.

The fact that the Commutation Advisory Board will not consider applications from prisoners with less than one year remaining in their sentence could be an indication that applications will take a significant amount of time to review (the broadly similar pardon process currently quotes a processing time of at least 18 months from the date that an application is received by the Pardon Advisory Board).

This is an especially important concern for potential applicants given the fact that Gov. Evers is not running for reelection. By this time next year, the discretion that Wisconsin law gives to the governor regarding pardon and commutation powers means that there could be a different set of standards or, like the practice of the last 25 years, no commutation process at all.

Another unknown is the standard by which the Commutation Advisory Board will actually modify a sentence. The information page on the governor’s website only says that the Board could recommend reducing the term of a sentence, shortening the time before parole eligibility, or converting a sentence to extended supervision.

The applications themselves don’t offer applicants a dedicated space to share their thoughts about what a suitable modification to their sentence would include, and until commutations are issued it is not clear what factors the Board will consider when recommending modifications.

We Can Make a Difference

Notwithstanding the fact that prisoners are not required to work with an attorney to complete their applications for commutations, the ambiguities described above, the short window of time in which applications might be processed, and the practical hurdles related to completing an application mean that attorney involvement in this process could make a critical difference for people applying for a commutation.

Attorney involvement could help applicants clear those logistical and financial hurdles much more easily than they would be able to overcome them on their own, which would set them up as well as possible to take advantage of this opportunity.

In particular, attorneys or others who could even just obtain the certified court documents for an applicant would let applicants with almost per se extremely limited means (certified copies of court records costs $5 + $1.25 per page) and ability to communicate with the circuit courts get records quickly, which could make all the difference given the possible time pressures inherent in this process.

Attorneys would also be well positioned to help obtain disciplinary records from the Wisconsin Department of Corrections, coordinate with reentry organizations and potential employers for the required letters of support, and help applicants share their story in the most cogent and sympathetic light.

In EO 287, Gov. Evers described the creation of the Commutation Advisory Board as serving several laudable goals – promoting rehabilitation, accountability, and the possibility of redemption.

Not only can commutations be life-changing for prisoners, but they can also benefit communities when individuals are able to reenter earlier and start to contribute once again.

Attorneys are in a position to help a marginalized and largely voiceless population of people take advantage of a once-in-a-generation opportunity for executive clemency. Stepping up now could make all the difference for not just the individuals petitioning for relief, but also for their families, their communities, and the entire state of Wisconsin.

This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.