Fix the Pardon Polcy

I was looking into the governor's pardon policy recently. I had not realized how strict the policy is. For one thing, the governor will not commute a life sentence no matter how unjust. At best, he will issue a posthumous pardon for a wrongly convicted person five years after they die. This is because, even though the state constitution gives the governor almost plenary pardon power, the governor has decided that he will not exercise his power until five years after a sentence concludes.

It may be justified to issue pardons to persons who have had their civil rights restored for half a decade, and may even be justified to prioritize some of these cases, but to make it a "no exceptions" iron-clad rule is just boneheaded. There are lots of good things that could be done with pardons and commutations that such a rule prevents.

First, many sentences are just excessive. This is especially true of very long sentences. If a twenty-year-old commits a very serious crime, the benefit of keeping him locked up to age 80 can't be much better than the benefits of keeping him locked up to age 60. When I was taking public defender cases, one common pattern was a murder in which the killer would get out in six years and someone who helped him would get 50 or 70. Sentences like this were theoretically based on all sorts of factors but in reality they were based mostly on nonsense, and often racist nonsense.

Second, some offenses are barely worth punishing. Mere possession of marijuana of the tiniest amount is illegal. More than that, a second offense of this type is a felony. The penalties for smoking weed in your house accelerate much faster than the penalties for drunk driving. You really have to wait five years to have one of these charges erased?

Third, our system of crimeless revocations means that some prisoners have their sentences extended long past the time they should have been free and clear. A person is sentenced to five years prison plus five years supervision. They do a few years on supervision then get revoked for a rule violation. They go back for a year and lose all their credit for the three, so they come out and have four years left. This happens again in a year and a half and they get another year in. Just before 18 months have passed, they get revoked for the remainder of their time. Voila! A ten-year sentence has taken more than 15 to complete, and the guy gets out the last time from prison to the street with no supervision left. Lots of these people deserved to be out long ago. Here's another twist. Suppose the guy does go out and reoffend. There can be an enhancer for a second offense within so many years. They guy's time may be doubled for the new offense because nearly five years that he was on the street without committing any crimes do not get counted in the passage of those years.

Fourth, there are life-ruining collateral effects to many convictions. There are literally thousands of restrictions out there saying you can't do this particular job or get that particular license if you are convicted of a certain offense. Occasionally people with a decent defense will plead guilty not knowing the consequences it will have. A plea offer that includes lengthy probation and no prison may sound pretty attractive, But then an innocent person winds up with no possibility of working in their field, and has to wait till five years after the end of the probation to ask for these collateral consequences to be dropped.

Fifth, there are plenty of cases out there where convictions are quite dubious. Our system favors finality which means that if you lost a badly conducted, error-ridden trial, or lost because of an overworked underprepared public defender, and let your appeal rights expire, or blew them because you relied on your own instincts or the advice of a jailhouse lawyer, then you can seldom get the case reopened without the unlikely emergence of genuinely new, previously unavailable evidence, or actual proof that you are innocent. After the trial, the presumption of innocence is gone and you have to prove by clear and convincing evidence that you didn't do it (even if the original trial didn't prove that you did). This is the most infuriating case. An innocent person who falls between the cracks of the procedural rules has nothing left but a possible pardon to consider his claim of innocence. Then the governor says, "sure, I'll consider the pardon request, but only after you've served your 15-year sentence, and then gone an extra five years just for giggles." That strikes me as reprehensible. The governor is effectively saying, "I don't care if you're probably innocent; I don;t care if your trial was a farce. Go tell it to the judge."

There are good government reasons not to overuse pardons. We assign the writing of the laws to the legislature and the trial of cases to the judiciary. Pardons are traditionally few. Politically, issuing large numbers of pardons seems like overstepping. What if the next guv abuses the pardon power? But on the other hand, a dramatic use of pardons could save on excessive prison spending, put more able workers into the economy, reduce the gross racial disparities in prison population that are hard to account for without some contribution from institutional (or individual) racism; and likewise cut the disparities for mentally ill and otherwise disabled folks who need treatment, not confinement. The pardonees are likely to be politically loyal, which in the case of Wisconsin today under a democratic governor would counter the effects of undemocratic gerrymandering that should be illegal.

I think Evers should get out his pardon pen and go to town.