“The quality of mercy is not strained. It droppeth as the gentle rain from heaven upon the place beneath. It is twice blessed: It blesseth him that gives and him that takes..." - Shakespeare
Located on the second floor of the south wing of the State Capitol, the senate chambers erupted with the smug nays of the Republican Legislature. The Italian marbled walls and original hand carved walnut furnishings would serve to insulate the legislators from the noise of outraged protestors filling the Capitol hallways with palpable disdain. Hundreds had gathered to protest the covert lame-duck legislative session unfolding within and its intent to subvert democracy and codify Walker initiated rules ahead of the incoming “liberalism” of the Democratic Governor and AG-elect.
LAME-DUCK POWER GRAB
At 6.30 am on the morning of December 5th, 2018 bloated legislators emerged to announce a broad package of bills, effectively stripping power from the more progressive, soon to be executive branch. In the waning days of Wisconsin’s Republican one-party rule, the efforts aimed at curtailing gubernatorial power featured a curious provision designed to expand the political risks of pardons and safeguard Walker’s clemency deference to the judicial branch. It was an obvious effort to dissuade his successor from modifying the conservative status quo, harking back to Walker’s Wisconsin of 2011 when truth-in-sentencing laws eliminated parole and early release programs. Punitive justice had appeased Walker’s fawning Republican band of legislators and special interest groups as he campaigned for higher incarceration and privatisation of the corrections system. However, as Governor-elect Tony Evers took office in January 2019 it was hoped the days of political chicanery were over and a new era of restorative justice would begin.
The legally dubious but Wisconsin Supreme Court approved power grab would result in the Department of Corrections having to submit a report to the legislature upon request with a requirement that the state keep a publicly accessible list of all individuals pardoned or granted early release. While much of the legislation is not new, it is undoubtedly a process to track the rates of recidivism by those granted clemency by the executive branch.
Could this provision have fed into the conservative and arbitrary criteria set by Governor Tony Evers? I think it’s a fair assumption that individuals are less likely to become recidivists once they have spent considerable time in the community (completing sentence at least five years ago) and not having been convicted of another crime since completion of their sentence. Behavioural history apparent, political liability for the new Governor adverted.
The Wisconsin GOP is not wholly responsible for the current timidity, the lame-duck session while legislating for additional requirements around clemency, cannot limit the Governor’s capacity to grant mercy – that is derived from the Wisconsin constitution (Article V, section 6) and the statutes.
The constitution clothes the executive with the power to grant pardons and this power is beyond control or even legitimate criticism of the judiciary. – 59 Am. Jur. 2d Pardon and Parole § 44 (2002).
Traditionally Governors have been very judicious in exercising the clemency privilege because of political fallout, and the Walker era of abstinence is well documented. But contrary to Walker’s tough-on-crime legacy, the criminal justice debate would gain momentum and contribute to his removal from the Governor’s office. Having championed a return to chain gangs and introducing laws that allowed children as young as 10 to be tried as adults in homicides and automatically charge 17 years as adults for all felonies, one can surmise that there is at least hope for criminal justice reform in Wisconsin under Evers going forward. But Wisconsin’s relationship with clemency had been eager in the pre-Walker era as clemency frequently crossed the aisle. Pardons were issued by both Republican and Democratic Governors. Republicans Tommy Thompson and his successor Scott McCallum issued a combined 262 pardons from 1987 through to 2002. Democrat Jim Doyle granted 300 pardons during his eight-year tenure. So why the absolute criteria from Evers? Why would the lame-duck session potentially shape Evers benchmarks for consideration?
THE DUKAKIS LESSON
Michael Dukakis a former Democratic Presidential candidate and Governor of Massachusetts had supported a weekend furlough program as a method of criminal rehabilitation during his tenure as Massachusetts longest serving Governor. One such beneficiary of the program was William Horton. While serving a life sentence for murder Horton was released on weekend furlough in the June of 1986 and never returned. On April 3rd, 1987, Horton committed further felonies when he twice raped a woman, knifing, binding, pistol-whipping and stealing a car from his victims’ fiancé. Horton would be caught and sentenced to two life terms plus 85 years.
Michael Dukakis won the Democratic nomination for President in 1988 and would soon be eviscerated by the Republican party for his role in the Horton case. Such was the damage, Bush’s campaign manager Lee Altwater would comment: "By the time we're finished, they're going to wonder whether Willie Horton is Dukakis' running mate." And wonder they did. Dukakis would lose the 1988 election as history recalls to George H. W. Bush.
Could the legacy of Democratic humiliation factor into Governor Evers apprehension to grant commutations, compounded by the fear of recidivism profiled by the lame-duck legislative session? And how does this relate back to Brendan Dassey's clemency petition?
Under the Evers process, the applicant must complete their sentence at least five years before applying, however, previous Governors of Wisconsin empowered applicants to seek a waiver to that requirement, and with the last commutation in the state of Wisconsin being granted in 1995 by Governor Tommy Thompson such mercy is long overdue.
WHEN MERCY OFFERS JUSTICE
Governor Tony Evers denied Brendan’s plea for clemency, stating that he did not meet two of the criteria for consideration, “It has not been at least five years since you completed your entire sentence for the conviction you want to be pardoned,” and that Brendan must also register as a sex offender to be eligible for a pardon. These findings are predicated on Brendan being guilty. Brendan Dassey is innocent. If Governor Evers and his Pardons Advisory Board reviewed the petition on its merits they would soon conclude (a) Brendan was coerced into the giving of a false confession that lacked any corroborative evidence and (b) there is zero DNA or forensic evidence linking him to the supposed crime scene where the prosecution contends a sexual assault took place. They would know this to be true if they embraced the true meaning of clemency and acknowledged the right of all people to redemption. But Brendan needs not redemption, he deserves justice.
Clemency demands transformation. To truly become a systemic solution to punitive and excessive sentencing and wrongful incarceration it requires the moral fortitude of politically independent reasoning. Its survival as a fail safe is only tangible in a justice system that is worthy of its name. In the state of Wisconsin, it is but a safe harbour for the select few.
However, Governor Evers will forever find the words clemency and Brendan Dassey entwined, one only has to Google “commutation in Wisconsin” and 318,000 search engine results pages (SERP) are documented. That is 318,000 pieces of content: articles, press briefings, websites and more where Brendan, Wisconsin, and commutation are mentioned together. That number will only increase.
Bring Brendan Home.