Expungement vs. Pardon vs. Commutation vs. Sentence Modification: Understanding Wisconsin Post-Conviction Relief

Introduction

Wisconsin law provides several different forms of post-conviction relief. These remedies are frequently confused. Understanding the distinctions between expungement, pardons, commutations, and sentence modifications is essential when evaluating potential avenues of relief.

Overview of Wisconsin Post-Conviction Remedies

The four most commonly discussed remedies are:

• Expungement
• Pardon
• Commutation
• Sentence Modification

Expungement

Expungement is a judicial remedy authorized by Wis. Stat. § 973.015. It may remove certain criminal court records following successful completion of a sentence.

• Decision maker: Sentencing judge
• Generally considered: At sentencing
• May remove court record: Generally yes
• May reduce sentence: No
• Leading authorities: State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811; State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811; State v. Arberry, 2018 WI 7, 379 Wis. 2d 254, 905 N.W.2d 832

Pardon

A pardon is an act of executive forgiveness authorized by Wis. Const. art. V, § 6.

• Decision maker: Governor
• Generally applies: After sentence completion
• May restore certain rights: Yes
• May remove court record: No
• May reduce sentence: No

Applications are reviewed through the Wisconsin Pardon Advisory Board before consideration by the Governor.

Commutation

A commutation is a reduction or modification of an existing sentence authorized by Wis. Const. art. V, § 6.

• Decision maker: Governor
• Generally applies: During an active sentence
• May reduce sentence: Yes
• May remove court record: No

Applications are reviewed through the Wisconsin Commutation Advisory Board.

Sentence Modification

Sentence modification is a judicial procedure allowing a court to alter a sentence under limited circumstances.

• Decision maker: Sentencing court
• May reduce sentence: Yes
• May remove court record: No
• Leading authorities: Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975); State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828

A common basis for sentence modification is the discovery of a "new factor" highly relevant to sentencing that was unknown at the time sentence was imposed.

Comparison Summary

Expungement addresses court records. Pardons address the continuing consequences of convictions. Commutations address ongoing sentences. Sentence modifications address sentencing issues through the courts.

Which Remedy Addresses Which Problem?

• Employment barriers: Expungement or pardon
• Professional licensing barriers: Expungement or pardon
• Excessive sentence: Sentence modification or commutation
• Ongoing incarceration: Commutation or sentence modification
• Public court record: Expungement
• Restoration of certain rights: Pardon

Common Misconceptions

A pardon does not expunge a record. A commutation does not establish innocence. Expungement generally cannot be requested years later if not addressed at sentencing. Sentence modification and executive clemency are different remedies.

Conclusion

Each Wisconsin post-conviction remedy serves a different purpose. Understanding the distinctions between these remedies is critical when evaluating available options and potential forms of relief.

Selected Authorities

• Wis. Stat. § 973.015.
• Wis. Const. art. V, § 6.
• Rosado v. State, 70 Wis. 2d 280, 234 N.W.2d 69 (1975).
• State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828.
• State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811.
• State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811.
• State v. Arberry, 2018 WI 7, 379 Wis. 2d 254, 905 N.W.2d 832.