Vol. 78, No. 2, February 2005

To Forgive, Divine:
The governor's pardoning power

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 provides:

"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 whatsoever.

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

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 pardon.⁷

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 be exhaustive.

When a person completes his or her sentence, the person automatically regains "his or her civil rights" as specified by the Department of Corrections (DOC).

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 restored.

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 subsection.²²

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 interpretation.

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 disclosed.

Gov. Doyle's Application for Executive Clemency form expressly so states:

"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 forgetfulness.

"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 office:

"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 government."²⁷

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 majority rule.

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 sentence.

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 moribund.

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

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 and

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 crucial factors:

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)

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 impact.

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 seriously.

Conclusion

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

Endnotes

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, .12.

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, § 3(2), (3).

¹³See Wis. Stat. §§ 125.04(5)(b) (alcohol) and 139.34(1) (tobacco).

¹⁴Wis. Stat. § 440.26(2)(c).

¹⁵Wis. Stat. § 440.26(5m).

¹⁶Wis. Stat. § 165.85; Wis. Admin. Code § LES 2.01(1)(c).

¹⁷See Wis. Stat. § 111.335(1)(c).

¹⁸Wis. Stat. §§ 48.685, 50.065.

¹⁹See Wis. Stat. §§ 48.685, 50.065; Wis. Admin. Code § HFS 12.

²⁰Wis. Stat. § 939.62(2).

²¹See Wis. Stat. § 906.09 (and numerous similar acts in other state and federal courts).

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 else.

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 receive firearms."

²⁷36 Wis. B. Bull. 54, 60 (Oct. 1963).

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 Justice.

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 granted.

³⁵Gov. Doyle's current policy is five years; a waiver can be requested.

³⁶Gov. Doyle's current policy is 18 months.

³⁷The governor can simply point to the board's recommendation as justification for denial in such cases.

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. § 925(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. Law School.

Wisconsin Lawyer