Wisconsin ranks 38^th in the nation on laws related to restoring rights and opportunities after arrest or conviction.¹

According to the Wisconsin Policy Forum, Wisconsin is the only state in the nation where judges are required to order expungement at sentencing instead of at the completion of someone’s sentence. Wisconsin also limits expungement to people under the age of 25, making it one of the only states that limits expungement to young offenders.²

As a criminal defense attorney, I am constantly getting calls from people who want an expungement or a pardon. Unfortunately, there are very few people who qualify for pardons or expungement. This reality can leave a lot of people feeling hopeless, with no pathway for relief.

While the terms “expungement” and “pardon” are often used interchangeably to refer to the process of removing a criminal conviction, the eligibility criteria and the effects of pardons and expungement are very different.

About Expungement

In Wisconsin,³ a person is eligible for expungement only if:

• they were younger than 25 years old at the time of the offense (if they were sentenced before 2009, they must have been under the age of 21 at the time of the offense);
• they were convicted of a misdemeanor; or a class H or I felony (maximum sentence is 6 years or less) if:
  • it must be a nonviolent felony;
  • they have no prior felony convictions;
  • but it does not apply to felony convictions prior to 2009;
• at the time of sentencing, the judge must have made them eligible for expungement upon successful completion of their sentence; and
• they must have successfully completed their entire sentence, including all confinement time (if ordered), all supervision time, and all other conditions of the sentence.

About Pardons

Under the Wisconsin Constitution, only the governor can grant a pardon, and each governor has the discretionary power to issue pardons.⁴ For example, Gov. Scott Walker (2011-19) did not issue any pardons during his entire tenure as governor.⁵ In contrast, as of Nov. 22, 2024, Governor Tony Evers has granted a total of 1,436 pardons.⁶

A person is eligible for a pardon only if all the following conditions apply:

• They have been convicted of a felony in Wisconsin.
• It has been 5 years since they finished any criminal sentence:
  • completed all confinement; and
  • completed all supervised release (probation, parole or extended supervision).
• They do not have any pending cases or charges.
• They are not currently required to register as a sex offender.

It's not always a “sure thing:" even if a person appears to be eligible for expungement or a pardon, it may not always be that simple.

Expungement Is Not Actually Self-executing

In State v. Hemp, the Wisconsin Supreme Court stated that if a court determines that someone is eligible for expungement and conditions expungement upon the completion of their sentence, then the plain language of the statute indicates that once the defendant successfully completes their sentence, they have earned and are automatically entitled to, expungement.⁷

However, in practice, most courts require a defendant file a motion and sometimes have a hearing on the request.

Recent case law has interpreted the expungement statute to be much more restrictive. In State v. Ozuna, the Wisconsin Supreme Court ​held that the phrase “conditions of probation” referred to conditions set forth by both the Department of Corrections and the sentencing court.⁸ In State v. Lickes, the Court held that any violation of a condition of supervision makes a person ineligible for expungement.⁹

Therefore, if a person violates any rule of probation during their term of supervision, they are ineligible for expungement, no matter how small the rule violation may have been.

Eligibility Does Not Guarantee a Pardon

Not everyone eligible for a pardon will be issued a pardon. The Pardon Advisory Board thoroughly reviews pardon applications, conducts hearings, and makes recommendations to the governor as to who ultimately should receive a pardon.¹⁰

Beyond the eligibility requirements, the Board considers several factors:

• the nature and seriousness of the offense;
• the amount of time that has passed since the offense;
• the applicant’s entire criminal history;
• personal development of the applicant (employment history, education, training, treatment history, etc.);
• input from the district attorney, the court, the victim and community members;
• letters of support submitted on the applicant’s behalf;
• a significant and documented need for a pardon (professional licensure, schooling, housing, admission into an assisted living facility or nursing home, desire to hold public office, etc.).¹¹

When a person applies for a pardon, the Board chair may recommend that the person be granted a pardon without a hearing, or they may deny the application without a hearing. Other times, an applicant is given a hearing in front of the Board. The Board can either deny the application or recommend that the governor grant the pardon.

Ultimately, the final decision to issue a pardon is up to the governor. While there is no appeals process when someone is denied a pardon, an applicant can reapply after 18 months.¹²

Benefits and Limits of Expungement and Pardons

An order of expungement requires all court records relating to the conviction be sealed, destroyed, or otherwise removed entirely from view, including from Wisconsin court system’s website (CCAP).

If a person is ever charged or convicted of another crime, the expunged conviction cannot be used to charge the person as a repeat offender, nor can it be considered at a subsequent sentencing hearing.¹³

An expungement does not affect records kept by other criminal justice agencies such as the Crime Information Bureau (CIB), district attorney offices and the Department of Corrections. Employers, schools, landlords, and licensing agencies can still request and access those criminal records through background checks.

An expungement does not vacate or overturn a person’s conviction. Therefore, a person’s ineligibility for certain licensing, employment, or public benefits will not be affected by an expungement. Finally, an expungement does not restore someone’s ability to possess firearms if they have been convicted of a felony.¹⁴

Pardons on the other hand, do restore a person’s civil rights affected by a felony conviction. The right to hold public office (including the ability to serve as a law enforcement officer) and the right to possess a firearm can only be restored by a governor’s pardon.

A pardon can make a person eligible to travel to certain countries (e.g., Australia, Canada, and Japan) that have policies denying entry to U.S. citizens with felony convictions. A pardon can also help people regain access to various public benefits such as housing that may have been barred by a felony conviction.

Additionally, pardons provide people with access to more employment opportunities in a variety of fields. Many jobs, such as teaching, law enforcement, health care, and cosmetology require professional licensing that may be impossible or very difficult to obtain with a felony conviction.¹⁵

Conclusion

Expungement in Wisconsin is only available to those who were under the age of 25 at the time of the offense who meet very specific eligibility criteria, including the mandate that a judge must make a person eligible for expungement at the time of sentencing.

As a result, the vast majority of people convicted of criminal offenses in Wisconsin are ineligible for expungement. Furthermore, proposed expungement reform bills have all stalled after being introduced in the last several legislative sessions.¹⁶

Pardons offer people convicted of felony offenses a chance to have their criminal conviction “forgiven.” Like expungement, pardons are also only available to individuals who meet very specific criteria. Additionally, the discretion to issue pardons is left solely to the governor. Therefore, the ability to obtain a pardon is wholly dependent on a governor’s policy and position on issuing pardons.

Finally, attorneys in a wide range of practices should be familiar with the laws surrounding expungement and pardons because of the far-reaching collateral consequences of criminal convictions.

This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ Margaret Colgate Love, "The Many Roads from Reentry to Reintegration: A National Survey of Laws Restoring Rights and Opportunities After Arrest or Conviction," Collateral Consequences Resource Center, March 2022.

² Wisconsin Policy Forum, "A Fresh Start, Wisconsin’s Atypical Expungement Law and Options for Reform," June 2018.

³See Wis. Stat. §973.015(1m)

⁴See Wis. Const. art. V, sec. 6.

⁵ Wyatt Eichholz, "Executive Use of Pardons in Wisconsin," Badger Institute,Aug. 1, 2024.

⁶ "Gov. Evers Grants 172 Pardons, Bringing Total Pardons Granted to 1,436," Tony Evers, Office of the Governor Press Release, November 22, 2024.

⁷See State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811.

⁸See State v. Ozuna, 2017 WI 64, 379 Wis. 2d 1, 898 N.W.2d 20.

⁹See State v. Lickes, 2021 WI 60, 397 Wis. 2d 586, 960 N.W.2d 855.

¹⁰See "Pardon Information," on Gov. Tony Evers website.

¹¹ Benjamin Edelstein, Taylor Forman, and Megan L. Sprecher, "Pardons in Wisconsin: Eligibility, Implications, and Best Practices for Attorneys," 96 Wis. Law. 26-33 (December 2023).

¹² Benjamin Edelstein, Taylor Forman, and Megan L. Sprecher, "Pardons in Wisconsin."

¹³ Peggy Hurley, "Expungement of a Criminal Conviction Record," Wisconsin Legislative Council, Issue Brief (January 2021).

¹⁴ Hurley, "Expungement of a Criminal Conviction Record."

¹⁵ Benjamin Edelstein, Taylor Forman, and Megan L. Sprecher, "Pardons in Wisconsin."

¹⁶ Benjamin Edelstein, Taylor Forman, and Megan L. Sprecher, "Pardons in Wisconsin."