Steven Walters
The State of Politics

Evers Pledges ‘Clemency’ To Fight Abortion Ban

Would governor use his power to pardon anyone convicted under 1849 abortion ban?

By - Aug 1st, 2022 05:50 pm
Gov. Tony Evers. Photo by Emily Hamer / Wisconsin Center for Investigative Journalism.

Gov. Tony Evers. Photo by Emily Hamer / Wisconsin Center for Investigative Journalism.

At a Democratic Party state convention rally in June, Gov. Tony Evers used a term — “clemency” — that is rare in criminal justice discussions to describe how he could help someone convicted of violating the state’s 1849 ban on abortions. The law makes abortions illegal, except when necessary to save the woman’s life.

According to news stories and a Tweet from Democratic Rep. Lee Snodgrass, Evers told an abortion-rights rally he would grant “clemency” to anyone convicted of performing an illegal abortion in Wisconsin. That 1849 law carries a potential penalty of up to six months in prison and a fine of up to $10,000.

Evers has issued 554 pardons, which restored some rights to those convicted of non-violent crimes, since taking office in January 2019. And he recently had the chairman of the state Parole Board resign to stop the release of an inmate who repeatedly stabbed his wife to death.

But how a governor’s clemency order could help someone convicted of violating the 1849 law seems unclear, given the lack of precedents.

One definition of clemency invites more confusion than clarity: “Clemency is a general term used for the act of reducing the penalties of a crime, similar to a commutation. Also, pardons are actually considered a form of clemency. If you receive a pardon, you are always receiving clemency, but if you receive clemency, you are not always receiving a pardon.”

Article 6 of Wisconsin’s Constitution gives governors “power to grant clemency to individuals who have been convicted of a crime except in cases of treason or impeachment, subject to certain statutory limitations,” an analyst for the Legislature’s research division, the Legislative Reference Bureau, said last week.

“This provision has been a part of the Constitution since statehood and has remained unchanged,” the analyst added, noting that it has allowed Evers to issue those 554 pardons. “The governor’s use of this authority is wholly discretionary.”

A 1973 article in the Wisconsin Law Review called clemency “an informal administrative process which has evolved within the executive branch.”

Margaret Love, a Washington, D.C, attorney who specializes in clemency and restoration of rights and who was U.S. pardon attorney from 1990 until 1997, said Wisconsin’s constitutional provision authorizing clemency is similar to the one in the U.S. Constitution. “The word ‘clemency’ covers all types of relief available from the pardon power,” Love said last week. “Though I have heard some people use the word ‘clemency’ to mean sentence commutations only.”

Keith Findley, a UW-Madison law school faculty member and director of the Wisconsin Innocence Project that investigates some criminal convictions, said Wisconsin governors have fairly broad powers.

“Technically, the governor cannot ‘overturn’ a criminal conviction, but the governor can grant a pardon that, for the most part, has the same effect,” Findley said. “A pardon is essentially an act of grace by the governor to ‘forgive’ the crime, which can shorten the punishment, or fully remove the consequences of the conviction, thereby having essentially the same effect as vacating the conviction without technically doing so.”

Evers and two Republican candidates for governor disagree on prohibiting abortions after the U.S. Supreme Court decision allowing each state to enact its own restrictions.

“I will never stop fighting to make sure that every single Wisconsinite has the right to consult their family, their faith, and their doctor to make the reproductive healthcare decision that is right for them, and without interference from politicians or members of the Supreme Court,” Evers said after the court ruling.

But Republican former lieutenant governor Rebecca Kleefisch vowed to “protect the lives of the unborn, support moms, and actually enforce the laws we have.”

And, after an Eau Claire campaign rally, construction company executive and Republican candidate for governor Tim Michels told a Wisconsin Public Radio reporter the 1849 law “mirrors my position on abortion … I am pro-life. It’s from my faith. And I make no apologies for it.”

Evers was clearly trying to make this point when he vowed to use “clemency” powers for someone convicted of violating the 1849 law: I am willing to use my pardon authority to help protect the right of women to choose an abortion.

Still, it could take a lawsuit to resolve the clemency powers of Wisconsin governors.

Steven Walters started covering the Capitol in 1988. Contact him at stevenscotwalters@gmail.com

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