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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