Under Wisconsin law, the state Department of Corrections is supposed to make an effort to avoid re-incarcerating people who violate minor terms of their probation, parole or deferred prosecution agreements. But advocates say DOC has not made an adequate effort to create  a system of short-term sanctions that allows people it releases to maintain contact with their families and hold onto their jobs. A rule solidifying DOC’s short-term sanctions policy, which advocates have criticized, goes into effect next month.

Act 196, passed in 2013, laid the groundwork for creating a system of short-term sanctions for people who violate the terms of their release into the community. The sanctions are supposed to provide  accountability and address bad  behavior without returning the person to prison. Roughly one-third of those entering prison each year in Wisconsin are returning because they have violated the terms of community supervision and therefore received  a “technical revocation”.

The 2013 law states that short-term sanctions should “ensure that efforts to minimize the impact on the offender’s employment… and family are made when applying sanctions,” or the sanction, whatever it may be, such as increased requirements to meet with a probation or parole officer, has the minimum impact on the person’s employment and family.

After the law passed, the Department of Corrections was charged with coming up with a framework for the new system of sanctions in the form of an administrative rule.

However, the final draft of a rule approved by Gov. Tony Evers in January, which will become part of the administrative code on July 1, states that the “impact on an offender’s employment… and family” are only “factors (that) may be considered when applying sanctions.”

The final rule provides more flexibility for probation and parole officers in the sanctions they impose. Critics say it fails to meet the law’s intent to ensure those sanctions have minimal impact on employment and family, as explicitly stated in Act 196. In particular, critics say, as long as lengthy jail holds are an approved short-term sanction, up to 90 days for very high level violations, the sanctions could have significant negative effects on both employment and family life.

A 2025 proposed rule, which was the subject of a July 2025 public hearing, contained some of the same language as Act 196, including “ensures that efforts to minimize the impact on an offender’s employment” and “family,” but the final rule removed that language.

Tom Gilbert, a WISDOM volunteer whose son has been in community supervision, has been one of the leading voices urging the DOC to implement the 2013 law. He sent a letter in 2024 to the former Secretary of the DOC, Kevin Carr, and later the current secretary, Jared Hoy, and offered input at the July 2025 public hearing. Gilbert, along with others, criticized the 2025 proposed rule for not capturing the spirit of the law and not offering “new revised policies and practices.”

He also criticized the DOC, saying it had implemented Act 196 by issuing a one-sentence rule in 2019, citing its use of evidence-based response to violations, a system of issuing appropriate sanctions based on the severity of the violation.

“In 2019, the Department quietly promulgated a one-sentence rule that it alleged implemented Act 196,” said Gilbert. “That one sentence did not even begin to address all of the features Act 196 intended to inject into the community corrections operations.” In effect, he added,  “the rule did not commit the DOC to do anything new or different.”

The Wisconsin Examiner made several requests to the DOC to explain why the final rule was written as it is, but received no response.

In a Feb. 27 letter to Hoy, Gilbert criticized the final rule for modifying language protecting ex-offenders’ contact with  employment and family, and noting that the  “short-term sanctions”  in the rule includes 90 days of incarceration.

He also points out that the rule’s stated responses for different levels of violations comes directly from the DOC’s manual on evidence-based response to violations.

“What they’ve done here is just pulled the status quo into the rule to make it sound like they’re now responding and they’ve got something new, but it’s nothing new,” Gilbert told the Examiner.

He noted that 90 days of jail incarceration, while described as a short-term sanction, has  a major impact on employment and families. He suggested if DOC needs a custodial hold, it could be considered for over a weekend, when it wouldn’t disrupt employment and family life as much.

How ‘short term sanctions’ affect people in real life

JenAnn Bauer of West Bend, who is on extended supervision, said even a weekend in jail can have a negative impact. Back in December, she was placed on a weekend hold after she reported to her PO on Wednesday the termination of her employment at a homeless shelter on Tuesday based on an allegation of using excessive physical force on a minor, which reportedly was on videotape. After spending the weekend in jail on a “hold” pending an investigation, and giving a statement to police on a Monday, she was released within hours without being charged.

“I have a little small business and this was around Christmas,” she said. “I had an order that needed to be made and packaged and labeled. I am fortunate that my son got on it for me. I don’t like to say traumatizing because I sometimes feel that that word gets overused, but for lack of a better word it was traumatizing, and I look at it like this — between five and six hours after you took my statement, you did not feel that I was an issue, that I was going to be a problem to the public, so, can I just ask, why didn’t we do that on Wednesday or Thursday? Did I really need to go sit in the county jail for the weekend?”

During the 2025 public hearing a member of MOSES, a nonpartisan interfaith group that promotes social justice and racial equality, submitted an unsigned written comment stating that the 2025 proposed rule “leaves the door open to revocation for minor violations like substance use. Individuals with minor violations are needlessly filling our jails and prisons. They do not receive treatment that could help them. They are prevented from continued employment and support for their families.”

In a report to the Legislature, the DOC provided a response to several of the written comments, saying that the department “strives to use the least restrictive alternative when responding to violations, which holds clients accountable while reducing the likelihood of future violations and criminal behavior. The DOC uses evidence-based response approaches equipping clients to be successful in the community to resolve issues at the lowest level because of the known impact jail sanctions have on employment, school and family responsibilities.”

The DOC’s Evidence-Based Response to Violation (EBRV) manual, which the DOC currently uses to determine sanctions, allows up to 90 days of jail time for those who have a “very high” violation and up to 20 days for a “medium” violation.

A 2024 report by the Robert M. La Follette School of Public Affairs, University of Wisconsin-Madison noted the number of revocations began to decline in 2021 after the EBRV had been fully implemented in 2019. However, a 2023 Legislative Audit Bureau report of the Community Correction Program revealed that of 79 individuals in community supervision interviewed, 59% said the short-term sanctions they received didn’t consider their employment needs, and 64.7 % said sanctions didn’t consider family obligations.

Sean Wilson, a senior director of organizing and partnership at Dream.Org, a national social justice advocacy group, also spoke at the 2025 public hearing and is critical of the final rule.

“While the proposed rules introduce categories of violations and outline possible responses, they still fall short of what the Legislature required under Act 196,” Wilson said.  “The law was intended to create a clear, structured system of short-term sanctions that would reduce reliance on incarceration. Instead, these guidelines present options without establishing standards. They do not ensure that the Department of Corrections errs on the side of protecting employment, supporting family stability, or reducing unnecessary incarceration. As written, the rules create alternatives to revocation but do not require their use.”

Jeremy Dings, who was in community supervision and experienced two revocations, also spoke at the 2025 public hearing. While in community supervision in 2007, he was sent back to prison because of  a violation and was still locked up when his mother passed away.

“If there were considerations about how that’s my family, it would have allowed me to stay with my loved ones and mom, who was suffering with these cancer issues,” he said

Ding acknowledges that over the years, he has witnessed how the DOC has given more consideration to employment for those in community corrections than it used to. “It used to be your problem if you lost your employment,” he said. “In fact, back in 2010, 2011, 2012, it was common practice and almost seen as this is how we get back at you, by you losing your employment.”

But Ding also agrees with Gilbert that as long as the DOC considers 90 days in jail a short-term sanction it will result in major ramification for those in community supervision.

“And so it’s obvious that a 90-day sanction is going to end somebody’s employment almost no matter what, and it would be great if those who are in probation and parole would consider someone’s employment and also their connection to their family and the responsibilities they have for their family, too,” he said.

Mark Rice, transformational justice coordinator for WISDOM, is also critical of the language in the final rule.

“The new rule still enables the DOC to utilize the response of up to 90 days in jail,” said Rice, “and then they changed the language from the original Act 196 when the original Act 196 uses the word ‘ensures’ that efforts would minimize the impact on a person’s employment and ‘ensures’ that the sanction would minimize the impact on a person’s family and employment, and they’ve changed that to me, so that it’s optional.”

Two holds, 17 days of jail, employment and family life impacted

In April and then later in May, Segdrick Leslie Farley, 46, of Eau Claire, who is on parole after serving 21 years in prison for second-degree intentional homicide, said he spent 17 cumulative days in jail while investigations were pending that later cleared him. The holds harmed his business, Brighter than Sunshine, he said, interrupted his education and disrupted his family life. He questions why other measures couldn’t have been taken to address the allegations instead of disrupting his life.

Farley, a college graduate who is pursuing graduate school, said he was put on a seven-day hold in April based on what he describes as a baseless allegation that he threatened another person. 

“My mental health was declining,” he said about his hold. “I was just worried, you know, worrying about my kids. I couldn’t talk to my kids because I didn’t want them to know that I was in jail.”

He said on the sixth day in jail his PO came to talk to him. Farley said he was angry because he had missed an opportunity to participate in summer research and missed an opportunity to secure educational funding.

“What I said to my agent at the time is just, ‘Did you really need to lock me up like, corrupt my life, interrupt my life, and cause all of this, when you could have simply just asked me the question?’”

And then on May 27, he was placed on hold again, this time for 10 days, after he made a report to police of a man trespassing on his property. The man arrested claimed Farley had waved a firearm, which, as a felon, Farley is not allowed to possess.

Farley was again put in a hold while his residence was searched. He said it could have been resolved by asking him for his key to search his house, even if he was put in hold for a day, instead of for 10 days and his landlord having to open his residence.

“It was embarrassing because my landlord had to come down and I might lose my place. He might think I’m some type of thug,” he said.  “Nothing was found because I don’t have firearms, I don’t do things like that,” and added, “I was fortunate enough to have somebody pay my rent for me. I was fortunate enough to have someone pay them (the employees), but my kids had to go without me. I lost income. I lost time that I should have spent preparing for my summer research in school, which is going to get me into graduate school and law school. I was supposed to be studying for the LSAT. I can’t take those days back. Even when I come home, there’s no apology that restores any of that.”

State Rep. Jim Piwowarczyk (R-Hubertus) and 39 other Republican legislators (33 from the Assembly and 6 from the Senate) sent a letter to Gov. Tony Evers Tuesday requesting that he suspend his new effort to process commutations (a reduction or a modification of a criminal sentence) out of concern over “serious consequences it is having on victims, law enforcement, families and public confidence in Wisconsin’s justice system.”

On April 3, Evers announced, under his executive authority to grant clemency (pardons, reprieves, and commutations), that he would make commutations available again in the state after 25 years since the last commutation had been issued.

A commutation doesn’t automatically mean a person in prison will be released. It could mean the incarcerated portion of the sentence is shortened, but the applicant still has prison time to complete, as well as fulfilling extended supervision. 

On April 3, Evers issued two executive orders: Executive Order 287, creating the Governor’s Commutation Advisory Board and Executive Order 288, creating a Juvenile Life Sentence Process.

Juvenile commutation is only available to those who were 19 years of age or younger at the time of their conviction. The juvenile commutation is also restricted to those who were sentenced as adults and received a life sentence or at least 39 years of incarceration.

The eligibility requirements for the two commutation applications share five specific conditions:

1. Applicants must currently be incarcerated in a correctional institution for a Wisconsin conviction with more than one year of the incarceration term remaining.
2. They must have served at least half of their incarceration term or at least 20 years of a life sentence.
3. They must not have any unresolved criminal charges or outstanding warrants in any jurisdiction.
4. There cannot be any incidents of violent misconduct within the last five years of current incarceration.
5. The commutation is not for any of the following offenses: sexual assault, physical abuse of a child, trafficking of a child, incest, and soliciting a child for prostitution.

Commutation applications have been offered online, and the first commutation hearings are expected to be held in June.

Soon after Evers announced he would be offering commutations, Republican legislators began expressing their opposition.

One of their criticisms is that by making the commutation process widely available, it is disruptive to the intent of truth-in-sentencing laws passed in the late 1990s, early 2000s, which require people convicted of serious crimes  to serve the totality of a prison sentence, including years in incarceration and extended supervision, without the possibility of a parole board shortening that sentence.

“For decades, Wisconsin maintained a commonsense approach that respected the finality of sentencing decisions and the voices of victims,” Piwowarczyk wrote in a press release announcing the letter to Evers. “There can be no justification for commuting the sentences of convicted murderers who shattered families and communities. Any commutation process must exclude homicide offenders and ensure victims have a real voice before any action is taken.”

However, under the executive authority in the state constitution, a governor has broad power to offer commutations. 

The Republicans’ letter highlights the case of Ted Oswald, who was convicted of murdering Waukesha Police Captain James Lutz.

The letter to Evers requests that no applicant who has murdered a law enforcement officer be given a commutation, and in Piwowarczyk’s press release, he broadens that request to remove “all homicide offenders from eligibility for commutation consideration.”

The letter also contends that families and victims are learning about applications  for commutation via social media, rather than through a reliable victim notification process.

“We also ask you to strengthen victim notification requirements, ensure victims and their families have a voice in the process, and require full notification to district attorneys and sentencing judges whenever commutation applications are filed,”  the letter states.

In Piwowarczyk’s press release, he specifically requests “creating a robust public notification system and online tracking log for commutation applicants,” and offering notification to victims at least 90 days out, and guaranteeing victims and families are heard at hearings.

On Gov. Evers’ commutation webpage, in answer to the question “Will the victim have a say in my application?” the reply is,  “Yes, the perspectives and opinions of victims will be an important consideration for the Commutations Advisory Board.”

Commutation applicants are also required to notify circuit court and the district attorneys’ offices of their petitions for early release. 

In his April 3 press release, Evers defended commutation as promoting “rehabilitation by providing a system that rewards the positive efforts of incarcerated individuals who demonstrate personal growth and a commitment to change with the possibility of a second chance to contribute to society, become productive members of their communities, make amends and improve their lives and those of the people around them.”

The Governor also said he was offering commutations to “build upon” his efforts to reform Wisconsin’s justice system in the absence of efforts by the  Wisconsin  Legislature to reform the state’s criminal justice system.

The Wisconsin prison population is at a historic high, exceeding 23,000. Evers promised at the beginning of his administration in 2019 to cut the incarcerated population in half, but the population has floated around 23,000 without significant change.

Criminal justice advocates have pressured Evers to use his executive authority to offer commutations to lower the prison population, especially for those who have been in prison for years and have matured and become responsible individuals capable of living in society

Left out of much of the criticism of Evers’ commutation plan is the fact that an application doesn’t guarantee success – it just offers, for those who are qualified, a chance to apply for a commutation. Applicants who are rejected will have to wait a year to apply again.

The Wisconsin Examiner reached out to the governor’s office for a response to the letter, but did not receive a response Wednesday.

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Tribal governing board members of the Bad River Band of Lake Superior Chippewa in northwest Wisconsin voted to make May 5 the Tribal Day of Awareness of missing and murdered indigenous women and relatives (MMIW/R) and authorized the creation of the Bad River MMIW/R Task Force on April 22.

All 11 federally recognized Wisconsin tribes participate in the Wisconsin Department of Justice’s MMIW/R Task Force, but Bad River is creating its own tribal task force. On Tuesday, more than 50 members of the Bad River community participated in an annual MMIW/R Awareness walk. They followed a route inside the reservation marked by posters and red dresses (one of the visual symbols of the MMIW/R movement) displayed on hangers hung from garden stakes.

The annual Bad River MMIW/R walk is one of several across North America to raise awareness of the violence, especially murder and disappearance, affecting indigenous people.

Bad River Chair Liz Arbuckle and several members of the task force participated in the Tuesday walk and discussed the newly formed task force.

“When I became chair, this was something I wanted to prioritize,” said Arbuckle. “Violence against our people, particularly women, is catastrophic. It’s a crisis, and we know every tribal community has been affected by it, both on rez and off rez, and so this is a good way for us to educate people about the issue.”

She said the task force has three main goals:

• Education, outreach, and prevention.
• Creating response teams and response plans.
• Preparing for the possibility that the Canadian energy company Enbridge will bring a large workforce for the Line 5 pipeline reroute to the area, creating what has been termed “man camps,” a concentration of male pipeline workers in rural areas, especially tribal areas.

Bad River and environmental groups are challenging the 41-mile Line 5 reroute around the reservation in court, but Arbuckle said the tribe must prepare as if the project will proceed.

“We’ve seen in other communities when there are large groups of men in camps, especially outside of Native reservations, the statistics show that it can be a really dangerous place, because some of these guys have a lot of money and these girls get caught up in that, or people get caught up in that and bad things can happen,” she said, “So we want to make sure we educate people about that and prepare them to make good decisions for themselves.”

A 2021 Guardian article, “Sexual violence along pipeline route follows Indigenous women,” reported that crisis centers noted more than 40 reports of workers on Enbridge’s Line 3 replacement in northern Minnesota were alleged to have harassed and assaulted women and girls. 

In that same article, Michael Barnes, an Enbridge spokesperson, said the corporation has “zero tolerance for illegal behavior by anyone associated with our company or its projects,” and the article also noted the corporation fired two workers charged with sexual/human trafficking.

Another, larger objective of the task force, said Arbuckle, is to create dialogue among local, state and federal agencies to share information and work cooperatively across jurisdiction lines, which is often difficult  when tribal lands are involved.

The task force includes members of social services, legal, public health and law enforcement agencies.

“I thought this is a great group that has different skills and different programs to come after it from different angles,” said Arbuckle.

If there is a crisis or emergency, such as a disappearance, all the preparation and forethought from the task force, said Arbuckle,  will have at least put the tribe in a better position to respond.

“We shouldn’t just start from scratch if someone goes missing,” she said. “We should have a plan. We should know the people. We should have a good relationship with the police or the sheriff.”

Theresa Morris, a community health manager, is a member of the task force, whose goal is to educate members about man camps and encourage members to travel in pairs and to let others know their whereabouts and plans.

Gina Jensen, a health worker who represents the tribe’s police commission, noted one of her motivations for being on the task force is that the murder rate for indigenous women is 10 times the national average.

Aurora Conley, one of the tribal governing board members who voted to approve the task force, said its creation signals the tribe is paying attention and is committed to being proactive and prepared, including networking and working with other tribes, communities and the state.

“I thought it was a beautiful thing, definitely,” Coley said of the task force’s creation, “and to let our community members know that those that have gone missing or murdered in the past have not been forgotten.”

Conley said as a parent of two Indigenous children she feels an obligation to make them aware that they are at higher risk.

“I have a small daughter, and it’s a different sense of awareness that we have to create … it better prepares our children and our communities,” she said.

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The Wisconsin Department of Natural Resources (DNR) held a public information hearing on four permit applications by Enbridge for streambank erosion control on the 41-mile reroute of Line 5, a light crude oil and natural gas pipeline. The 16 people who spoke all voiced opposition, either specifically to the permits or to the reroute itself, and many cast aspersions on the Canadian pipeline corporation.

In addition to ongoing legal challenges, the four permits are among the last hurdles in Wisconsin that Enbridge needs to clear to reroute its pipeline around the Bad River Band of Lake Superior Chippewa Indians Reservation, which borders Lake Superior.

Enbridge is under a court order that has been stayed in a federal appeals court to remove the existing Line 5 pipeline from the reservation by June. The Bad River Band has rejected several offers from Enbridge to keep the line on the reservation, and after Enbridge was ordered to remove the line from the reservation, the Band redirected its opposition to the reroute, arguing that it poses an environmental threat to its watershed.

Enbridge is seeking four streambank erosion-control permits for four waterways in Ashland County: an unnamed tributary to the Brunsweiler River, Beartrap Creek, Bay City Creek, and Little Beartrap Creek.

Joe McGaver of Enbridge Environment Projects detailed the work proposed for each of the four sites. He noted that Lake Superior Consulting identified the erosion issues, and the measures to address them are intended to “stabilize the streambanks and prevent continued erosion” below the ordinary high-water marks.

He also noted that Enbridge and the riparian landowners — those owning the land along the waterways — are “co-applicants” and also “co-permittees.”

At a recent Bayfield County Court hearing on April 16 requesting a stay of ongoing work on the reroute, pending a judicial review of approved permits, lawyers representing Bad River and environmental groups contended that under state statute only the riparian owner can seek a permit for modification of the shoreline. But the legal counsel for the DNR responded that it was its practice to use “co-applicants” in similar projects.

Comments

Ashley Guardado of Hempstead, New York, representing Women’s Earth and Climate Action Network, urged the DNR to deny the four permits because they would jeopardize the waterways and the “pristine ecosystems that depend on them.”

“Approving these permits would also enable construction activities that pose long-term risks to water quality, habitat, and the broader watershed,” she said, and noted beyond the local creeks and river, the larger concern is the Great Lakes, which hold 20% of the world’s fresh water.

“So I urge you to consider what it really means to jeopardize these waterways and the ecosystems at both a local and a global level, be it encroaching on the tribal sovereignty and the rights of Indigenous nations that are within this territory to exacerbating the climate crisis and deepening our dependence on fossil fuels that move us only further away from the just transition that Wisconsin, the United States and the world very urgently need,” she said.

Gracie Waukechon, a Wisconsin resident, said the DNR shouldn’t approve the permits out of concern for the environment, and also because Enbridge isn’t legally qualified to seek the permits regarding riparian ownership and Enbridge’s history of environmental damage, including the 2010 crude oil spill of nearly 1 million gallons into the Kalamazoo River in Michigan.

Skylar Harris, representing Midwest Environmental Advocates (MEA), said her organization would submit detailed written objections to the specific permit application, but addressed the DNR’s interpretation of Wisconsin’s Public Trust Doctrine.

“Riparian ownership language in Section 30.12 of the Wisconsin statutes was created in 1949 pursuant to the public trust doctrine to give landowners the ability to live along navigable waters and engage in limited construction activity that would improve navigation or protect the property from erosion and other hazards,” she said. “Because the Legislature was trying to limit the types of construction that could occur in navigable waters, non-riparians were explicitly excluded from permit eligibility. Enbridge has filed these applications for project permits, which is a non-riparian claiming that easements and co-applicant agreements with landowners are sufficient to get around the clear statutory prohibition against construction by non-riparians.”

She said the DNR supports Enbridge’s position and had “tentatively” made the determination to grant the permits, which, she said, would be “a blatant violation of explicit statutory mandates and a violation of the public’s constitutional right to use and enjoy Wisconsin’s navigable waters,” and would set a precedent for other commercial development and environmental damage.

Jadine Sonoda of Madison said Enbridge had raised concerns for Wisconsin because of issues during its Line 3 construction in Minnesota, where it had pierced an aquifer in Northern Minnesota and had agreed to a $2.8 million legal settlement.

Matthew Bourke of Michigan wondered if the DNR investigated any concerns raised in prior hearings, and he questioned why Enbridge had been allowed to pursue permits when it had been found to be trespassing on the Bad River reservations, and a court case in Michigan is challenging the closing of a section of the pipeline under the Straits of Mackinac.

Patricia Hale, an attorney from Antigo also argued Enbridge didn’t have a right for the permits.  

“This is not their (Enbridge) property,” she said of the waterway banks, adding that Enbridge shouldn’t be allowed to request permits based on the easement, because the public has voiced its opposition to Enbridge’s latest permit application for a Line 5 reroute.

Joe Bates, a Bad River tribal elder from Odanah, said Enbridge is endangering Wisconsin waterways by operating a pipeline originally built in 1953.

“This reroute also violates our treaty of 1854,” said Bates. “It (1854 treaty) guarantees us a permanent homeland.”

Bates said the reroute would surround the reservation, requiring members to seek permission from Enbridge to cross it to gather, hunt, or fish in the ceded territories, lands off the reservation where tribal members have rights to pursue resources. At the April 16 court hearing, legal counsel for Enbridge said the corporation would allow permission to tribal members to cross its pipeline for those who have a legal reason to do so. 

“I urge you to please deny permits to Enbridge,” said Bates.

Jennifer Boulley, a Bad River member living in Washburn, also noted that just that morning the US Supreme Court ruled the case in Michigan regarding Line 5 under the Straits of Mackinac will stay in a state of Michigan court and not a federal court as Enbridge had requested.

“Were just hoping that the DNR will continue to listen to the people and not the money, so we can save this water for future generations,” she said.

RJ Claire of Ashland County said the focus of the hearing is on specific technical issues, but she encouraged the DNR to consider a broader perspective on potential harm and environmental impact, and she accused the DNR of being complicit in enabling Enbridge to commit “violence” against the environment.

“Again and again and again and again, tribal members have been expressing to the rest of us that what’s happening right now is an act of violence,” she said. “The DNR is participating in enabling the violence of Enbridge. Who among you is willing to start breaking that pattern? Again, I know this is a technical hearing, but I think it’s really, really, really, really important and crucial that we are looking at this in a holistic way. Because I would argue that from when we focus on the technical parts, that’s a form of just dismissing the violence that is occurring.”

Melanie Conners, a Bad Rivers member who said she lived near Bad River and the Kakagon Sloughs, a wetland that has received international recognition due to its environmental niche and wild rice bed for the band, read a definition from the Environmental Protection Agency (EPA) of “environmental justice” as “fair treatment and meaningful involvement of people, regardless of color, race, national origin or income, with respect to the development, implementation and enforcement and environmental law, regulations and policies.”

She questioned why Bad River members had to “bear the weight” of potential oil contamination.

“It’s Bad River tribal members who will be directly impacted,” she said, and added, “I harvest rice every year to sustain my family. How are you allowing this? This is environmental racism. Enbridge cannot guarantee that it will not contaminate our waters, our Kakagon Slough.”

Additional comments will be accepted until  May 2. Comments should be either emailed to macaulay.haller@wisconsin.gov or left via voice message at (608) 347-0240 or sent by mail to Macaulay Haller, 101 S. Webster Street, Madison,  53707-7921.

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Gov. Tony Evers issued two executive orders this month that make the commutation of prison sentences available again in Wisconsin.

Executive Order 287, creating the Governor’s Commutation Advisory Board and Executive Order 288, creating a Juvenile Life Sentence Process, open up new opportunities for people to get out of prison and reestablish their lives in the community. 

A commutation, like a pardon (a type of civil forgiveness with some rights restored), is authorized in the Wisconsin Constitution under the governor’s executive clemency authority. Commutations can shorten terms of incarceration or place applicants on extended supervision, or they may simply push up the date of a parole board meeting, making an applicant eligible for parole sooner. Unlike a pardon, a commutation doesn’t erase the record of the offense.

Nine-month window of opportunity

With Evers leaving office on Jan. 4, the next governor can continue the commutation process, including maintaining the Commutation Advisory Board that holds hearings on commutation applications and makes recommendations to the governor — or the next governor could amend the process or even decide not to offer commutations at all.

Because of Evers’ imminent departure, there is a sense of urgency among people in prison and their advocates to submit commutation applications as soon as possible, before the first commutation hearings are held in June.

In a Substack post, Eau Claire attorney David Carlson, a formerly incarcerated  advocate for people who are leaving prison, wrote about the significance of the executive orders but also a sense of urgency to take advantage of what might be a unique opportunity.

“There are moments in governance when an action is less about its immediate effect and more about what it makes possible,” he wrote. “Governor Tony Evers’s Executive Orders 287 and 288 fall squarely into that category. They do not resolve the issue of excessive incarceration in Wisconsin, nor do they create a permanent commutation system. What they do is create a window, and that window is narrow.”

He noted the commutation board has a “functional runway of approximately nine months.”

“The question is not whether these executive orders are meaningful – they are – but whether Wisconsin will use this time strategically or allow it to pass as another short-lived initiative that never reaches its full potential.”

Carlson encouraged advocates to engage candidates running for the governor’s seat if they “intend to continue, expand or institutionalize this commutation process,” and he also discouraged applicants from waiting until after the November election to apply.

“These are not applications that can be assembled hastily or corrected later,” Carlson wrote. “They must be done correctly the first time and must be started immediately. Individuals seeking commutation must begin now, and advocates must assist in building strong, complete submissions.”

Carlson also notes that the first cases heard before the commutation board are very important because how “the process is perceived” will impact the future of commutations in Wisconsin.

How to apply

On the governor’s online “Commutation Information” page there are commutation applications available for both standard commutations and juvenile life sentence commutations. 

Juvenile commutation is only available to those who were 19 years of age or younger at the time of their conviction. The age of conviction is critical, not the age of the defendant when the offense was charged.

The juvenile commutation is also restricted to those who were sentenced as adults and received a life sentence or 39 years or more of incarceration.

Since 2022, legislation has been introduced but hasn’t gained traction, which would have offered adjustments of sentences for “an individual who committed the crime for which the individual is being sentenced before he or she turned 18 years old,” but was charged as an adult. That legislation would have allowed those who had not been involved in a death to apply for an adjustment at the 15th year of  incarceration, and for those who had committed a crime involving a death to apply at 20 years.

The proposed legislation and Executive Order 288 both reflect the U.S. Supreme Court decision, Miller vs. Alabama, that a sentence of life without parole for a juvenile is unconstitutional, recognizing mitigating factors for youth due to both intellectual and emotional development.

The eligibility requirements for the two commutation applications share five specific conditions:

1. Applicants must currently  be incarcerated in a correctional institution for a Wisconsin conviction with more than one year of the incarceration term remaining.
2. They must have served at least half of their incarceration term or at least 20 years of a life sentence.
3. They must not have any unresolved criminal charges or outstanding warrants in any jurisdiction.
4. There cannot be any  incidents of violent misconduct within the last five years of current incarceration.
5. The commutation is not for any of the following offenses:

* Sexual assault.

* Physical abuse of a child.

* Trafficking of a child.

* Incest.

* Soliciting a child for prostitution.

An additional condition for the general commutation application requires the applicant not to be serving a sentence for “a sex offense or be required to register as a sex offender (either currently or upon release).”

Commutation applicants are encouraged to obtain assistance, and the application even lists three organizations that provide free or low-cost services: Legal Action of Wisconsin, Milwaukee Justice Center, and Legal Assistance to Incarcerated People Project.

Rachel Fox Armstrong of Legal Action of Wisconsin, said her office has been “inundated by calls for assistance” since the governor issued his orders.

“Unfortunately, our limited resources mean we will only be able to help a very small portion of those who call us for assistance with commutation,” she said. “This process is new and developing. We know that the legal community, advocacy groups, the Department of Corrections, and the Evers administration will need to work together to ensure that the many excellent clemency candidates are able to have their applications submitted and thoughtfully considered.”

Questions about the process

During a Saturday, April 11, webinar conducted by the nonprofit group Forward Justice Wisconsin on commutations, participants expressed concern about how “violent misconduct” or “violent behavior “ should be defined for the purpose of the application. 

Another question addressed the requirement that certified copies of each criminal case, including sentencing transcripts, be obtained and submitted, but people confined to prison in Wisconsin must have their legal mail copied and the original destroyed. That raises the question: If  the original is destroyed, how can the certification be preserved?

Other concerns raised included:

*Older cases where there might not be any certified records available.

* Challenging why a question about  “any other interactions with law enforcement” is relevant, as well as “prior arrest that did not lead to charges, deferred judgments, criminal charges that were later dropped or dismissed, or instances where you have been the subject of criminal investigations.”

*Whether a restraining order that was later dismissed should be required to be disclosed.

Issues raised in the April 11 webinar were forwarded by the Wisconsin Examiner to the Governor’s Commutation Advisory Board for a response, but none were available at the time of publication.

Notifying the courts and victims

Three weeks before a commutation hearing, each applicant must provide a notice to the circuit court and the district attorney’s office of the court where offenses were processed. The chair of the Commutation Board can, at his or her own discretion, forward an application directly to the governor without a “non-binding recommendation and without a hearing or any executive action of the board. 

Applicants are also “strongly encouraged” to provide a copy of the application to the clerk of courts and the DA.

At the April 11 webinar, participants suggested that applicants make four sets of each application: the original for the commutation board, a copy for the applicant, a copy for the circuit court judge who heard their case and another for the DA.

All these copies of the commutation application raise another issue: the cost of just obtaining the original certified documents, supporting documents, the application form and copies. Brittany Lee, one of the webinar presenters, noted that certified court documents alone could cost between $60 and $200.

The executive orders also require victim notification, but that is the responsibility of the governor’s office, at the “discretion and direction” of the commutation board and the Office of Victim Services and Programs. “Reasonable attempts” should be made to publish a notice three weeks before the hearing to be published in newspapers in the county where the offenses were committed.

The staff reviewing the commutation application will also collect additional information, perform a background check, and may seek “additional input from the judge, district attorney, defense attorney, and victims”.

According to the application, the review of each submission may take over a year to complete.

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During a nearly four-hour hearing Thursday at the Bayfield County Courthouse in the city of Washburn, Wisconsin, Bayfield County Circuit Judge John Anderson consistently pressed lawyers petitioning for and against a stay or stoppage of work to reroute the Enbridge Line 5 pipeline in northern Wisconsin on the standard he should use in determining the likelihood of success of a judicial review.

Environmental groups and the Bad River Band of Lake Superior Chippewa Indians have applied for a stay of the Enbridge project based on their petition for review of an administrative court judge’s decision in February to approve permits to go forward with a 41-mile pipeline project. The plan is to reroute the pipeline around the Bad River reservation, after a court finding that the existing pipeline is illegally trespassing on tribal land.

Pipeline opponents argued that the judicial review would ultimately be successful, in part because the Department of Natural Resources (DNR) had inappropriately applied a state statute governing navigable waterways, and that ongoing pipeline work before the review is completed would result in irreversible harm. Even though the new route does not cross the reservation, it endangers water that the tribe depends on, Bad River representatives and environmental groups argue.

The legal counsel for the DNR and Enbridge pushed back, noting that there had been extensive work and public scrutiny of Enbridge’s permit application, and that there wasn’t a high likelihood of the judicial review succeeding.

Judge Anderson said after he received briefs from all parties by April 27, he will decide on the stay, depending on whether he is “convinced” the judicial review would “not go further.”

He framed his future decision on the negative chances of the review.

Arguments for the stay

“The Band has a significant interest,” said John Petoskey, an Earthjustice attorney representing Bad River. “It has an interdependent relationship, and it’s the only homeland it has ever had. The natural landscape is far more than a resource. It’s a way of life. That way of life requires a sustainable environment. It’s undisputed that the project will cause an impact.”

Judge Anderson questioned how to determine “irreparable” or “irreversible” damage.

Petoskey responded that destroying a wetland that has not been damaged in 100 years would mean the area will never be the same.

“When wetlands are destroyed, they don’t clean water or control floods and no longer provide services that help the tribe,” he said.

Petoskey also said the reroute will create a “belt” of restricted area around the reservation, where if tribal members go, they could be charged with a felony. However, later, Enbridge lawyer Eric Maassen, said Enbridge would recognize the rights of all tribal members who had a legal right to be on the land.

Robert Lee, representing the Sierra Club, League of Women Voters and 350 Wisconsin, expressed concern about at least 72 waterways the pipeline is supposed to cross.

He argued that under statute 30.12, only the riparian owners (landowners whose property adjoins or contains a natural waterway, and who therefore have the right to reasonable use of the water) can apply for permits for the waterways, and noted that Enbridge is not the riparian owner but a “co-applicant” with the riparian owners.

“Enbridge has the ability to acquire land,” he said, adding that all the company had obtained were easements with property owners.

“Under our view, that is unlawful if they are not the riparian owner,” he said.

Lee also noted that Enbridge had not been specific about what and where it would remove substances from navigable waters, and said under statute 30.20 the DNR had to know specifically what is to be removed to make a decision on a permit. He also noted that Enbridge said some bedrock would be destroyed but wasn’t specific where that would occur.

“If they don’t know the waters where blasting is to take place then public interest is not met,” he said.

Representing Clean Wisconsin, Evan Feinauer said, “They can’t build a pipeline and not do irreparable harm.”

Judge Anderson responded, “Can’t you say that about any project? Where is the line?

Feinauer responded, “Environmental resources will never be the same, even under the best-case scenario.”

Feinauer claimed the DNR didn’t have all the information in front of it when it issued permits, and Judge Anderson asked, “Whose fault was that?” Feinauer said Enbridge didn’t provide needed information on all the potential waterway crossings, including wetlands Enbridge had failed to include in its project proposal.

“I can’t think of a more important question than which wetlands,” said Feinauer.

Arguments against the stay

DNR counsel Gabe Johnson-Karp  said the factors Judge Anderson should consider in issuing a stay are “irrevocable harm” and “success on the merits” of winning the judicial review.  

“I have to consider the likelihood of success,” said Judge Anderson. “How do I do that if I don’t have the record yet?”  Anderson added that he does not intend to read all 113,000 pages of submitted documents.

Johnson-Karp also said the petitioners had failed to provide a “factual showing” of harm and had only addressed a “generalized harm.”

Anderson asked why the parties were even in court if four major waterway permits had not yet been issued. Johnson-Karp acknowledged a lot more work on the pipeline could be done before the four permits are issued.

Regarding the right to cross a navigable waterway and whether the application is solely the riparian owner’s responsibility, Johnson-Karp said the DNR has had a consistent practice of using a “co-applicant approach,” such as Enbridge is using, where Enbridge has an easement with owners.

Maassen also noted there were only four permits being pursued on the project, and he anticipated that they would be opposed.

Maassen said Enbridge has a “high confidence” it could lawfully work on the permit sites, and added, “Just because there are wetlands and forest doesn’t mean you don’t do infrastructure.”

If a three-month stay were issued, Maassen said, in actuality, it would be more likely to delay the project by six months as workers who had been assigned to the project would have left and more time would be needed to hire others.

Maassen also argued that Enbridge didn’t need to be the riparian owner on property it would only be working on in some cases for 24-48 hours.

And he contested the characterization that the blasting of bedrock is not in the public interest as a “woeful miscategorization.”

“If they can’t convince me there is a likelihood on the merits, does it end there?” Judge Anderson asked Maassen about the success of the judicial review and the request for a stay, and Maassen responded, “It does.”

Maassen added that if the pipeline didn’t proceed, it would increase the “threat to energy security” and place up to 700 union jobs at risk.

He also noted that there is a stay of a judgment in the U.S. Court of Appeals for the Seventh Circuit for Enbridge to stop using the existing Line 5 on the reservation by June 16. If  that judgement does not remain stayed, he said, it could negatively impact 10 refineries and cut off most of the propane supply for Michigan.

“There are no alternatives to this line,” said Maassen. “Some refineries will have to shut down, resulting in hundreds of millions of losses.

Lastly, Maassen said Enbridge is also requesting that the petitioners post a $49 million bond if a stay is ordered and Enbridge incurs a loss from the delay.

Petoskey, the Bad River lawyer, said the court did not have to consider economic factors when making decisions about wetlands, and he also noted courts have rejected requests for a bond when the litigants are seeking to protect environmental resources.

Lee, arguing for the Sierra Club, said the court has a responsibility to follow the “letter of the law to have riparian ownership,” and challenged the DNR’s use of “co-applicants” as a “made-up” application of the statute.

Asked by Anderson on the standard of success to be used in issuing a stay, Lee responded, “50-50 probability of success; that is sufficient.”

“I don’t think there is a reasonable likelihood of success,” countered Johnson-Karp on the chance the judicial appeal would succeed.

Anderson asked why Enbridge shouldn’t be the riparian owner or require Enbridge to buy the land? Maassen responded, “The whole notion that being a co-applicant is inappropriate I think is a bad argument.”

Anderson asked all the lawyers to submit briefs within 10 days, with specific attention on the issues he had raised during the hearing.

This report has been updated to reflect that Anderson is a Bayfield County circuit judge.

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