Illustration: Dave Zylstra
On Monday, Nov. 4, Wisconsinites watched national news coverage of families meeting outside of Oklahoma prisons. On that day, Gov. Kevin Stitt signed the largest single day commutation of prison sentences in U.S. history. Inspiring videos of tearful hugs and joyous reunions filled our television and social media screens. Many in Wisconsin were surprised, wondering how this deep south red state could set hundreds free while our prison population continues to grow.
Wisconsin has a disproportionately high rate of incarceration from laws enacted during the days of Gov. Tommy Thompson, but now the former governor is working to try to undo some of that damage. People who’ve been organizing against mass incarceration in Milwaukee have particularly strong feelings about the current situation. David Liners, executive director of WISDOM, a non-partisan, statewide, grassroots, interfaith organization that focuses on social and racial justice issues in Wisconsin, expressed some of the frustration. “I hope our governor will see Kevin Stitt using his powers to make right something wrong in the system and do the same here,” he says.
Increasingly, conservative organizations like The Badger Institute and Charles Koch’s Americans for Prosperity are in agreement with groups like WISDOM that mass incarceration is too costly and unfair, especially when it comes to low-level drug crimes. Nevertheless, Wisconsin is falling behind reforms made by both deep red states down south, as well as our closest midwestern neighbors.
A deeper look at what specifically happened in Oklahoma reveals that the mass-commutation was the end of a years-long process of hard-fought struggle by the people against government intractability. Voters in both Wisconsin and Oklahoma have expressed strong support for reform and decarceration, but it seems Wisconsin’s political structures have become less responsive to the will of the people.
A Tale of Two Legislatures
The process in Oklahoma started in 2016 with State Questions 780 and 781. These binding initiatives attached to the November ballot that year reclassified simple drug possession as a misdemeanor with no prison time and reinvested savings into rehabilitation programs. The ballot measures passed by 58% and 56% respectively, defeating opposition from police and prosecutors. These initiatives automatically became law and were implemented the following summer.
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Unlike Oklahoma, Wisconsin voters can’t make laws directly, however; we can pass advisory referenda with our ballots. We did so in November 2018. The closest correlate to Oklahoma’s ballot measures were our marijuana legalization referenda in 16 Wisconsin counties, whereby voters were asked to weigh in on legalization for either medical or recreational use. All the referenda came back with majority support for full legalization at 60%. These were both red and blue counties, urban and rural, and the support was amazingly consistent. A poll by Marquette University also consistently finds about 60% support for full marijuana legalization statewide. In Wisconsin, even such large vote margins don’t make law; they only advise law-makers.
However, in Oklahoma, State Question 780 alone did not release anyone from prison. The state legislature and governor’s office had to take action to include people who were charged and sentenced before the law change. In January 2019, Oklahoma’s House Majority Leader, a Republican from the suburbs of Oklahoma City, introduced House Bill 1269, which made SQ 780 retroactive, automatically releasing and expunging the records of those sentenced under the old law. When he introduced the bill, he said: “The people of Oklahoma have spoken loud and clear on the issue of criminal justice reform.” By May, HB 1269 had passed into law, albeit with amendments that somewhat weakened it.
Meanwhile, according to Molly Collins, advocacy director for the Wisconsin ACLU, several marijuana legalization bills are stalled in the Wisconsin Legislature. The margins for our marijuana referenda were greater than those held in Oklahoma, but Collins says none of the bills have a chance right now.
“It’s really important that legislators listen to their constituents and understand that folks are ready to talk about marijuana,” she said, “I remain optimistic that we can work with Republicans and Democrats on this problem, because it really is a crisis that people can’t continue looking away from.”
‘Fulfilling the Will of the People’
The final version of Oklahoma’s HB 1269 also gave responsibilities to the governor. When passing the state Senate, the automatic effects of the bill were amended out. As passed, the law required people to go through a costly process for expungement and gave the state Pardon and Parole Board a role in commutations. It created a “commutation docket” that mandates the Pardon and Parole Board to recommend release in a single vote rather than the long process of conducting hundreds of individual hearings.
Stitt—a suburban Republican businessman and member of the Cherokee Nation who was elected governor of Oklahoma in November 2018—could have instructed the Pardon and Parole Board to use stringent criteria disqualifying nearly everyone from this commutation docket. Indeed, they did reduce the 814 eligible people they reviewed down to the 526 they recommended for release. Stitt released all but 65, who had retainers from other jurisdictions. Both the board and the governor spoke about “fulfilling the will of the people” when moving forward. They were able to celebrate with Oklahoma’s reunited families.
Wisconsin’s Pardon Advisory Board (PAB) is separate from the Parole Commission, and our 1999 “Truth in Sentencing” law complicates the process further, but the Wisconsin Constitution does give the governor “exclusive and discretionary power to grant reprieves, commutations and pardons.” Former Republican Gov. Scott Walker essentially suspended the PAB, and he issued no pardons during his eight years in office. Gov. Tony Evers has the power to do as Stitt did: Commuting sentences and reuniting families in accordance with the will of the people.
This summer, Evers recreated the PAB to much fanfare; however, he set criteria that excludes all currently incarcerated people from consideration. So far, only 12 people who were convicted of minor, non-violent offenses and who also completed their sentences more than five years ago have received pardons.
For Sylvester Jackson—an organizer with WISDOM affiliate Ex-Incarcerated People Organizing (ExPO)—expanded pardon criteria would offer some hope of redemption and forgiveness from his past. He is currently about a year into a 10-year sentence on extended supervision, following 10 years in prison. “Oklahoma is able to do this without feeling like they’re putting their whole community at risk,” he said. “For me, it brings light and new hope for our campaigns.”
Evers Fighting for Criminal Justice Reform
“Reforming our criminal justice system—and addressing the shameful racial disparities in the system—is a top priority for Gov. Evers,” says Melissa Baldauff, his deputy chief of staff.
“The governor is spending millions of dollars to address the prison population in his first budget; the way we are doing it is by making sure fewer people are incarcerated in the first place,” Baldauff continues. “That includes significant investments in Treatment and Diversion (TAD), expansion of nonviolent offender diversion programs, community policing, wraparound services and early interventions. We’re also helping reduce recidivism through substantial investments in reentry programs that provide essential job training and skills development for returning citizens.
“As well, the governor believes in the power of redemption. That’s why he proposed banning the box in his budget and has begun issuing pardons again. But this work is only the beginning. We look forward to hearing and learning from advocates who share the governor’s commitment to reforming our criminal justice system and making progress toward a more fair and compassionate system,” Baldauff says.
In summary, since there is bipartisan support for this issue of releasing many of those convicted and serving time for non-violent, victimless crimes, the Wisconsin Legislature could put an advisory referendum on the April 2020 ballot clearly addressing this issue to gauge the true level of public support. Assuming the polls are accurate, the support would likely be in the 60% range. Then, Evers could propose legislation that would begin to release these non-violent offenders. If the Legislature fails to listen to the will of the voters and pass the legislation, the Evers could then begin to act unilaterally with his pardon powers.
