How the Wisconsin Legislature's Power Grab Could Affect Pardons

If the package is signed into law, Scott Walker's unforgiving clemency legacy could continue.
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Wisconsin Governor Scott Walker.

Wisconsin Governor Scott Walker has not granted any pardons during his time in office.

During the entirety of his nearly eight years as governor of Wisconsin, Scott Walker hasn't issued a single pardon. And if Wisconsin's lame-duck legislature gets its way, neither will any future governors.

On Wednesday, in the waning days of Republican one-party rule in Wisconsin before Democratic governor-elect Tony Evers takes office, the state legislature passed a broad package of bills aimed at limiting gubernatorial power. If signed by Walker, the new legislation will become law, limiting the power of the state's incoming Democratic leadership. According to the Associated Press, Evers has promised a fight—possibly litigation—to ensure that the new legislation "does not get into practice."

The sweeping legislation puts limits on early voting (which usually benefits Democrats), transfers control of the state's board of economic development from the governor to Republican lawmakers, and requires the governor to seek permission from the legislature for a bevy of executive tasks, including banning guns at the state capitol, or asking for changes to jointly run federal-state programs like Medicaid, the New York Times reports. The bills also prevent Evers from ending the state's ongoing lawsuit against the Affordable Care Act—pulling out of this legal battle was a major part of his campaign.

But one aspect of the proposed laws seems aimed not just at keeping the state under Republican control, but under the control of Scott Walker—specifically with regard to clemency. The bill would require the state to keep a publicly available list of all individuals pardoned or granted early release, identifying them "by name ... the crime for which he or she was convicted, and ... the person who pardoned the individual or authorized the early release." Additionally, the list must be updated to show if anyone on it is convicted of another crime.

The provision seems designed to increase the political risks of pardons—and thus preserve Walker's clemency abstinence. "I just look at [granting pardons] and say that's not really why I ran for office," Walker told the Associated Press in 2013. "It's not what I campaigned on. It's not what I talked about." Jim Doyle, his predecessor who also governed for eight years, pardoned nearly 300 people during his time in office.

To better understand the broader implications of this proposed change, Pacific Standard spoke to Mark Osler, an expert in clemency and law professor at the University of St. Thomas School of Law.

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Do states and the federal government already keep a public record of everyone pardoned?

Yes, and you can go to the pardon attorney's website for the federal record, and they list it by name, who is pardoned, when, and the crime of conviction. Wisconsin is an unusual case because their pardoning is pretty much only up to the governor. They have a pardon advisory board, but [Walker] announced he wasn't going to do any pardons.

So what exactly makes this new legislation different?

It's kind of odd. Because the part that says you have to name the person you provide a pardon to—I'd be pretty shocked if that's not already public information. The part of this that seems different is the very end [of the bill's provision]: "If an individual appears on a report requested under this bill and is subsequently convicted of a crime, this bill requires [the Wisconsin Department of Corrections] to report also the name of that individual and the crime." If someone gets a pardon or otherwise an early release, they have to report that. They're going to track recidivism by people who receive pardons.

One thing to keep in mind is, in Wisconsin, in recent history, clemency has been pardons and not commutations. In other words, it's not governors letting people out of prison early; they've granted pardons to people who have completed their terms.

So a pardon only applies to someone who's completed their term?

It doesn't have to. In the federal system, for example, you can be pardoned before you serve your term—although it's unusual. The practice in Wisconsin is pardons are only considered after people have completed their term. If you look at the [Department of Justice] guidelines on it, pardons are accepted in extraordinary circumstances only appropriate for people who have completed their term. So if you're letting someone out early, we usually call that a commutation, not a pardon.

Is the state publicly keeping tabs on the pardoned antithetical to the spirit of a pardon?

I don't know. Because it's just a reporting requirement. They're saying, "OK, we want to track recidivism among people who have gotten pardoned." I suspect that, once they do that, the recidivism rate is going to be pretty low. Because in Wisconsin, the rule traditionally—and this extends way back before Walker—is that they don't even consider pardons until people are eight years out from the end of [their] sentence. By the time you're pardoned, you've already been free of recidivism during the time when people are most prone to re-offend. So I doubt there's going to be many people who reoffend.

But this reporting requirement would apply more broadly—not only to the pardoned.

Yes, this is curious to me. It doesn't just say for pardons, but to people who are released from imprisonment before completing their sentences. That's something entirely different. In 2011, Wisconsin passed a really strict "truth in sentencing" law. Basically, they got rid of parole, and people aren't released [from prison] early. So, currently, people don't get out before the end of their sentence. This could be a hedge against a new law. Let's say [the incoming legislature and governor] decide they are going to reinstate some form of parole or early release program. This requirement would say, OK, we have to track all those people for recidivism. We have to name them at the time that they're released as well.

So the reporting part of this—I don't see anything really heinous there. But they're also saying, if you develop a second look program [or parole], you're going to have to track recidivism for those people as well. I guess what they're trying to do is make it so if the incoming governor tried to find a way to lessen incarceration in the state without legislation, this would impose a reporting requirement on that.

Why is Scott Walker so anti-pardon?

He said, "This is best left up to the courts." I guess he means that he doesn't believe in ever looking at a case that has been sentenced. Which is unfortunate, because sometimes sentences are too long, sometimes they don't fit, and sometimes people change when they're in prison.

In terms of looking at pardons, you've got tradition in Wisconsin, you've got people who completed their sentence, and have been eight years out from completing their sentence. And what they want is to get a job, or they need a license, or they want to go hunting with their grandchildren, or something like that.

And if you're on a publicly available list that includes your crime, that doesn't stop you from getting a job?

No, I don't think it would. Because, in terms of getting a license, if you've been pardoned, then you're going to be able to get that license. It's pretty simple.

I can comprehend why a governor might fear the possibility of political liability and thus not want to pardon someone, but I'm confused as to why the legislature would want to disincentivize someone from doing so in the future.

What they're clearly trying to lock in [with the lame-duck bills] is what Walker did. I don't think they can bar by legislation the governor from having the power to pardon, because that's in the Wisconsin constitution. So they're trying to make it subject to additional requirements.

Is there a degree of additional requirements that would eventually be a violation of the constitutional right to pardon?

Yeah! Like anything else, you can hinder a constitutional right to such a degree that it's a violation of the constitution. But the reporting requirement is probably not [enough of a hinderance].

And how abnormal is Walker's pardoning abstinence? How many pardons do governors usually grant?

It varies a lot. You have some states where pardoning isn't done by governors. In some states, an independent board does it. Governors vary a lot, but it's pretty rare to come in, say, "I'm not going to use this constitutional power," and then not.

Do governors or boards tend to pardon more?

We see the most regular use of pardoning done by states that have independent boards, I think because of the process and structure. They're politically independent. They become experts. And it's not a red state, blue state thing either. Some of the states that are most regular with pardoning are states like South Carolina and Delaware. And the states that aren't very good at pardoning include Minnesota and Vermont. So it's not that Republicans don't like pardons and Democrats do. It's complicated. But Walker taking that up, saying "I'm not going to issue clemency"—you don't see many governors doing that.

How substantial is the number of people pardoned when compared with the number who go through the prison system?

Usually with the state systems, what we're talking about is pardons—people who have completed their sentence. It can be substantial. In a state like South Carolina, you get 300 a year, and it's a relatively small state. That's a lot of clemency. But again, that's not people who are walking out of prison. That's people who have served their time and then gotten the pardon.

What about the effect that pardons have on the rest of the judicial system? Do states that give a lot of pardons also tend to have harsher sentencing laws?

It's hard to say, looking at that many systems, that there's one trend. When we're in a more retributive state as a country, like we were in the 1980s, longer sentences are imposed and clemency gets cut back. We have both happening at the same time. But there's a lot of variation across the country on that.

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