Restoration of Rights & Record Relief
Last updated: January 3, 2024
I. Loss & restoration of civil/firearms rights
A. Civil rights
The right to vote is lost upon conviction of “treason, felony, or bribery,” and is automatically restored upon completion of the term of imprisonment or probation. Wis. Stat § 304.078 (3) (“served his or her sentence or otherwise satisfied the judgment against him or her”). The right to sit on a jury depends upon being a qualified elector, and is restored along with the vote upon completion of sentence. § 756.01(1). The right to hold public office and other rights lost (e.g., firearms, licenses) are restored only by pardon. Wis. Const. art. XIII, § 3; Wis. Stat. §§ 111.335(cg), (cs); 941.29(1)(a)-(b),(5).
C. Collateral consequences
An interactive searchable database of collateral consequences imposed by Wisconsin statutes and rules was prepared for the Wisconsin State Public Defender by the Collateral Consequences Resource Center. It is available at wisconsin.ccresourcecenter.org.
II. Pardon policy & practice
The governor has exclusive power to pardon, except in cases of treason and impeachment, “subject to such regulations as may be provided by law relative to the manner of applying for pardons.” Wis. Const. art V, § 6. He must communicate annually with legislature each case of clemency and the reasons. Id.1 The legislature has enacted statutory requirements as to notice and publication (see Process section below). Wis. Stat. § 304.09(3); 14 Op.Atty.Gen. 577 (1925).
The governor generally appoints a non-statutory Pardon Advisory Board (PAB), and in June 2019 incumbent governor Tony Evers appointed a PAB after a hiatus of nine years in which no board was appointed and no pardons were issued.2 The website of Governor Evers’ PAB is here. See below for frequency of grants.
The application form available at the PAB website explains that a person must have completed their sentence five years ago, have no intervening convictions and no pending charged. These criteria may not be waived. Pardon is only available to persons convicted of felonies under Wisconsin law, and not to misdemeanants or to out-of-state or federal offenders. Further details about the Wisconsin pardon process are available at the PAB’s website: https://evers.wi.gov/Pages/pardon-information.aspx.
By statute, the applicant must publish notification “at least once each week for 2 successive weeks before the hearing in a newspaper of general circulation in the county where the offense was committed. If there is no such newspaper, the notice shall be posted in a conspicuous place on the door of the courthouse of the county for 3 weeks before the hearing and published once each week for 2 consecutive weeks before the hearing in a newspaper published in an adjoining county.” Wis. Stat. § 304.09(3). The applicant must also notify the DA, sentencing judge, and victim at least three weeks before the scheduled hearing. Id. The pardon application form is posted on the PAB website: https://evers.wi.gov/Documents/PardonApp_July2019.pdf. The pardon application must contain a statement from the DA and the sentencing judge giving their opinion on the merits of the application. § 304.10. The current process requires a public hearing before the PAB where the applicant must be able to show a demonstrated need for a pardon (see section E).3
In September 2021, Governor Tony Evers streamlined the pardon process for people with dated non-violent offenses, issuing an executive order authorizing the PAB chair to send their applications directly to the Governor’s Office rather have them than face a PAB hearing. Further, Governor Evers introduced a new application form that allows individuals to apply for pardon for multiple felony offenses rather than just their most recent offense, as under past policies.
According to the information posted on the Pardon Advisory Board website, the Board will consider such factors as the seriousness and recency of the offense, the extent of rehabilitation, and the applicant’s “significant and documented need” for pardon such as employment, education or job training. The applicant must be able to demonstrate their need for relief with a letter from the prospective employer, licensing board or school, and “also provide written documentation of significant steps taken in pursuit of the sought employment, schooling, job training, or public office.” Pardons to clear conscience or regain firearms rights are not generally granted, unless the conviction is old and minor. Factors taken into account include age and seriousness of conviction, extent of need, applicant’s “personal development” since crime was committed, and community or civic contributions.
F. Effect of pardon
Pardon restores rights and privileges lost as a result of conviction, relieves legal disabilities, and signals rehabilitation, but does not expunge or seal the conviction. Gun rights are restored unless the conviction was for a domestic violence misdemeanor. Those convicted of a felony involving possession of a firearm must receive a pardon for both the underlying felony conviction and the firearm possession conviction in order to regain gun rights. Pardon does not result in removal from the sex offender registry. A pardoned conviction must be revealed to an employer if asked, but pardoned individuals are also encouraged to furnish proof of pardon to prospective employers. See PAB website.
G. Frequency of grants
In June 2019, after a hiatus of nine years in which there were no pardons granted in Wisconsin, see note 2, supra, Governor Tony Evers reconstituted the Pardon Advisory Board, which began holding hearings that fall. Over the ensuing 42 months, pardons were issued on a regular basis, so that by October 2021 Governor Evers had issued 278 pardons. In the next 18 months months he pardoned a whopping additional 833 individuals, for a total of 1,111 grants in his first term in office. See, e.g., this press release: https://content.govdelivery.com/accounts/WIGOV/bulletins/31657be/ To contextualize this number, the Wisconsin Pardon Database, which extends back to 1977, contains a total of 1206 grants, so that in four years Evers has already issued almost as many pardons as all of his predecssors over the past 50 years. See also Jack Keating, Evers revives pardoning in Wisconsin , Collateral Consequences Res. Ctr., October 18, 2021. It would appear that the pardon power is once again very much alive and well in Wisconsin (though evidently dependent upon the philosophy of the incumbent governor), and makes up to some degree for Wisconsin’s failure to provide any judicial or other statutory record relief. It does mean that those with non-conviction records have no recourse.
Between 2003 and 2010, Governor Doyle granted 293 pardons overall, 176 in his final year, mainly for dated minor offenses. Since 2003, between 200-300 people who meet eligibility requirements apply annually, a number that has been increasing each year. More than triple the usual number applied in 2010, the final year of Governor Doyle’s tenure. Another 250 people applied for waivers, either because they had not satisfied the five-year waiting period or because they were convicted of a misdemeanor, but few waivers were granted (about 10 each year). Source: Governor’s Office.
III. Expungement, sealing & other record relief
The limited authority for expunging and sealing court records in Wisconsin is described in a detailed brochure issued by the Wisconsin court system.
A. Youthful conviction expungement
“[W]hen a person is under the age of 25 at the time of the commission of an offense . . . for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.” See Wis. Stat. § 973.015(1m)(a). This provision applies to misdemeanors and minor nonviolent first felonies, and requires the trial court to make the expungement decision at the time of sentencing and not at the conclusion of the sentence or at some later time. The burden is on the defendant to request expungement at the time of sentencing. See State v. Arberry, No. 2016AP866-CR (Wis. Jan. 19, 2018), aff’g 375 Wis. 2d 179, 895 N.W.2d 100 (Wisc. App. 2017).4 The person must have successfully completed the sentence without being convicted of a subsequent offense and, if on probation, without having the probation revoked. See § 973.015(2). “Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.” Id. Expungement upon successful completion of sentence is automatic, and there is no need for a defendant to file a petition with the court. See State v. Hemp, 214 WI 129 (Wis. 2014) (defendant could not be denied expungement where authorities failed to forward the appropriate papers to the court, even where he was subsequently charged with a new offense). However, a sentence will not be considered successfully completed for purposes of expungement if there was any violation of court or DOC-imposed conditions of probation. See State v. Lickes, Case No. 2019AP1272-CR, Slip Op. (Wis. June 15, 2021).
Expungement “shall” be ordered at the time of sentencing for “invasion of privacy” (peeping) if under 18 at the time of the offense. § 973.015(1m)(b).
B. Prostitution by victims of human trafficking
Wis. Stat. § 973.015(2m)(a).A person convicted or adjudicated delinquent for prostitution may move the court to vacate the conviction and expunge the record if the person was a victim of trafficking for the purposes of a commercial sex act, and the person committed the violation as a result of being a victim of trafficking. The court must determine that “the person will benefit and society will not be harmed by a disposition.”
C. Effect of expungement
“Expunge” under Wis. Stat. § 973.015 means “to strike or obliterate from the record all references to the defendant’s name and identity.” 67 Atty. Gen. 301 (1978). Expungement of a court record “enables an offender to have a clean start so far as the prior conviction is concerned.” See State v. Leitner, 646 N.W.2d 341, 352 (Wis. 2002) (“An expunged record of a conviction cannot be considered at a subsequent sentencing; an expunged record of a conviction cannot be used for impeachment at trial under § 906.09(1); and an expunged record of a conviction is not available for repeater sentence enhancement.”) However, § 973.015(2) authorizes expungement of court records only, and not records in the possession of law enforcement agencies or prosecutors.5
Nor does it prohibit courts from considering the facts underlying an expunged conviction in sentencing in another case:
[N]othing in the language or history of § 973.015 indicates that the legislature intended record expunction under § 973.015 to wipe away all information relating to an expunged record of a conviction or to shield a misdemeanant from all of the future consequences of the facts underlying a record of a conviction expunged under § 973.015.
Leitner, 646 N.W. 2d at 352.
The Wisconsin Labor and Industry Review Commission has held that an employer may not rely on an expunged conviction to establish that her criminal record was “substantially related” to the position involved. See Staten v. Holton Manor, ERD Case No. CR201303113 (LIRC, Jan. 30, 2018) (skilled nursing facility could not rely on misdemeanor theft conviction that had been expunged; permitting the employer to do so would conflict with the purpose of the statute permitting expungement, which is to permit certain offenders to “wipe the slate clean of their offenses and to present themselves to the world—including future employers—unmarked by past wrongdoing.”)
D. Deferred prosecution/adjudication
Wis. Stat § 971.37 authorizes a prosecutor to enter into a deferred prosecution agreement with a defendant in domestic violence and some sex offense cases. The prosecutor may require a guilty plea as a condition of deferral, notwithstanding § 971.37(4) (consent to deferred prosecution is not an admission of guilt). See State v. Daley, 716 N.W.2d 146, 149 (Wis. Ct. App. 2006). Notwithstanding statutory eligibility factors, it appears that prosecutors have considerable latitude in extending deferral to other offenses.6 See § 971.37(5) (deferred prosecution agreements are not precluded “for any alleged violations not subject to this section”). Upon successful completion of the terms of deferral, the charges may be dismissed and no conviction results. § 971.37(3). However, these records may not be expunged (see below).
Treatment courts: The Wisconsin courts have established a system of “treatment courts” that are separately funded on a county-by-county basis pursuant to statute. See Wis. Stat. Ann. § 165.95. Some counties have established treatment courts to deal with the specific problems of drug addiction, mental illness or veterans. Prosecutors or the regular criminal courts may refer individuals they deem eligible to a treatment court pursuant to a deferred-prosecution or deferred-judgment agreement. See Thomas Walsh, In the Crosshairs: Heroin’s Impact on Wisconsin’s Criminal Justice System, 89 Wisc. Lawyer 32 (2016). Because these courts are not established by statute, the Wisconsin Supreme Court has held that individual participants have no rights in connection with a decision to expel them from a treatment program. See State v. Keister, 385 Wis.2d 739, 924 N.W.2d 203 (WI 2019).
E. Non-conviction records
Wis. Stat. § 165.84(1) provides that fingerprint records must be returned by law enforcement “upon request” if person arrested is “subsequently released without charge, or cleared of the offense through court proceedings.” While this law has been interpreted by the Wisconsin courts to require expungement of uncharged arrests, see Demonta Antonio Hall v. Wisconsin Department of Justice, 2020 WI App 12 (Wisc. App. 2020) courts have not addressed whether the phrase “cleared of the offense through court proceedings” extends to other non-conviction records. The state department of justice website states that acquittals, dismissed charges, or charges not prosecuted after two years “may qualify for removal of the arrest information from your record,” https://www.doj.state.wi.us/sites/all/themes/wi-doj-ag/dles/cib-forms/criminal-records-unit/remove-arrest.pdf, but this does not appear to apply to court records). The state’s form instructions also clarify that “[c]ompletion of a first offender program (deferred prosecution) which results in no prosecution or dismissal qualifies for removal…” https://www.doj.state.wi.us/sites/default/files/dles/cib-forms/record-check-unit/DJ-LE-250B%20%28Draft%2002232017%29%20-%20Fingerprint%20Removal%20Request.pdf.
F. Juvenile records
Upon turning age 17, a juvenile adjudicated delinquent may petition the court to expunge the adjudication records. Wis. Stat. § 938.355(4m). The court may expunge upon a finding “that the juvenile has satisfactorily complied with the conditions of his or her dispositional order and that the juvenile will benefit from, and society will not be harmed by, the expungement.” Id. Upon expungement, all paper and electronic records are removed, and the case file is sealed. Wis. Sup. Ct. R. 72.06. Arrest records generally remain confidential, but there is no method by which to expunge them.
IV. Criminal record in employment & licensing
A. Wisconsin Fair Employment Act
The Wisconsin Fair Employment Act (1977) includes discrimination based on criminal record among other prohibited grounds for adverse employment or licensing decisions. Wis. Stat. § 111.321 et seq. However, it is not unlawful to take adverse action based on arrest or conviction “the circumstances of which substantially relate to the circumstances of the particular job or licensed activity,” or if the person is not bondable. § 111.335(3)(c). It is also not employment discrimination for an educational agency to refuse to employ, or to terminate the employment of, an individual who has been convicted of a felony, whether or not the circumstances of the crime relate to the job. § 111.335(3)(d)(2). Licensing authorities are specifically prohibited from issuing licenses to convicted persons for certain professions if they have not been pardoned (e.g., security personnel and private investigators, installer of burglar alarms), or who have been convicted of certain offenses (including drug offenses). See § 111.335(3)(b) through (f).7 The board of nursing is also specifically exempted from any limitation on licensing. Wisconsin law makes people convicted of a felony ineligible for more than 100 other professional licenses. See National Inventory of the Collateral Consequences of Conviction, https://niccc.csgjusticecenter.org/.
It is employment discrimination to ask an employee or applicant for employment for information about an arrest record, except when charges are pending, or when employment depends on bondability. § 111.335(2)(a). The provisions of the Fair Employment Act are explained at https://dwd.wisconsin.gov/er/civilrights/discrimination/.
For the 2018 amendments to this Act governing occupational licensure, see below.
Interpretation and enforcement of the WFEA: As an integral part of the state’s nondiscrimination scheme, the provision is enforced by the Labor and Industry Review Commission (LIRC). In County of Milwaukee v. LIRC, 407 N.W.2d 908, 916 (Wis. 1987), the Wisconsin Supreme Court rejected an interpretation of the “substantial relationship” test as “a detailed inquiry into the facts of the offense and the job.” Instead, the court looked to the circumstances fostering criminal activity as essential evaluative criteria, such as having the opportunity for criminal behavior. The court concluded that the county could terminate a crisis intervention specialist after he was convicted of homicide by reckless conduct and multiple misdemeanor counts of patient neglect arising from actions taken during his previous employment as a nursing home administrator:
On the one hand, society has an interest in rehabilitating one who has been convicted of crime and protecting him or her from being discriminated against in the area of employment. Employment is an integral part of the rehabilitation process. . . On the other hand, society has an interest in protecting its citizens. There is a concern that individuals, and the community at large, not bear an unreasonable risk that a convicted person, being placed in an employment situation offering temptations or opportunities for criminal activity similar to those present in the crimes for which he had been previously convicted, will commit another similar crime. This concern is legitimate since it is necessarily based on the well-documented phenomenon of recidivism.
407 N.W.2d at 914-15. After the County of Milwaukee decision, the “substantial relationship” test has for the most part been applied in favor of employers. See, e.g., Halverson v. LIRC, 431 N.W.2d 328 (Wis. Ct. App. 1988) (unpublished) (termination of employment following conviction for shoplifting from employer’s customer was not wrongful; shoplifting substantially related to work involving the need to enter residential and commercial premises when customers may not be present); but see Milwaukee Bd. of Sch. Dirs. v. LIRC, 632 N.W.2d 123 (Wis. Ct. App. 2001) (school district improperly discriminated against an individual convicted of a class C felony by refusing to hire him as a boiler attendant); Wal-Mart Stores v. LIRC, 583 N.W.2d 674 (Wis. Ct. App. 1998) (misdemeanor drug possession did not substantially relate to a “stocker” position at a retail store involving a highly regimented and structured workday).
However, in December 2018, the LIRC held that a lighting products company had not proved that a job applicant’s convictions—for felony strangulation and suffocation, and misdemeanor battery, fourth degree sexual assault, and damage to property—were substantially related to employment as a lighting applications specialist. Palmer v. Cree, Inc., ERD Case No. CR201502651 (LIRC, Dec. 3, 2018) (“Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job.”). Therefore, the LIRC ordered the employer to cease and desist from discriminating based on the conviction record, and pay the applicant back pay and attorney’s fees.
The LIRC also has held that an employer could not rely on a misdemeanor theft conviction that had been expunged to establish that a conviction record was substantially related to employment as a certified nursing assistant. See Staten v. Holton Manor, supra, ERD Case No. CR201303113 (LIRC, Jan. 30, 2018)(skilled nursing facility could not rely on misdemeanor theft conviction that had been expunged; permitting the employer to do so would conflict with the purpose of the statute permitting expungement, which is to permit certain offenders to “wipe the slate clean of their offenses and to present themselves to the world—including future employers—unmarked by past wrongdoing.”)
For a more complete discussion of the adoption and modification of Wisconsin’s Fair Employment Act, see Jeffrey D. Myers, Note, County of Milwaukee v. LIRC: Levels of Abstraction and Employment Discrimination Because of Arrest or Conviction Record, 1988 Wis. L. Rev. 891 (1988). See also Thomas M. Hruz, Comment, The Unwisdom of the Wisconsin Fair Employment Act’s Ban on Discrimination on the Basis of Conviction Records, 85 Marq. L. Rev. 779, 779-801 (2002) (discussing interpretation and application of Act).
B. 2018 law on occupational licensing
Amendments to the Wisconsin Fair Employment Act in 2018 strengthened the provisions of the law relating to occupational licensing by enacting a new § 111.335(4). See Act 278, approved by the governor on April 16, 2018. Act 278 prohibits boards in most cases from denying or revoking a license based on pending charges, and requires a licensing agency, before denying or terminating a license based on a prior conviction, to state its reasons in writing, including “a statement of how the circumstances of the offense relate to the particular licensed activity.” Agencies must also provide individuals denied a license with an opportunity to show evidence of rehabilitation and fitness to engage in the licensed activity. “If the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity under par. (d), the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction.” Agencies are also directed to take into consideration other specific evidence of rehabilitation.
2. In addition to the documentary evidence that may be provided under subd. 1. to show sufficient rehabilitation and fitness to perform the licensed activity under par. (c) 1. b., the licensing agency shall consider any of the following evidence presented by the individual:
C. Ban-the-box in state employment
In February 2016, Governor Walker signed AB 373 which, as part of a major overhaul of the state’s civil service system, prohibits inquiries into the criminal history of civil service applicants until after the applicant has been certified for the position. See Wis. Stat. § 230.16(ap). However,
If a particular conviction record disqualifies applicants for a certain position in the state civil service, the director may request a person applying for the position to supply information regarding the conviction record of the applicant, or otherwise inquire into or consider the conviction record of the applicant, to determine whether the applicant’s conviction record disqualifies him or her for the position before the applicant is certified for the position.
- The governor may also, upon the recommendation of the Department of Corrections, discharge state prison inmates absolutely or conditionally once the person has served the minimum sentence required by law (or in the case of lifers five years after their release on parole), without going through the notice and hearing procedure set forth in Wis. Stat. § 304.09. Wis. Stat. § 973.013(2). In such instances, the discharge “has the effect of an absolute or conditional pardon, respectively.” Id. It appears that this statutory clemency authority is rarely if ever used.
- Governor Scott Walker announced early in his first term that he did not intend to appoint a PAB and announced his general belief that “these decisions are best left up to the courts.” Associated Press, Walker has no plans for granting pardons, JSOnline, Nov. 28, 2011, http://www.jsonline.com/news/statepolitics/walker-has-no-plans-for-granting-pardons-j837jvk-134584228.html. In November 2012 individuals with pending applications were informed that the Wisconsin process had been “suspended indefinitely,” that “applications currently on file will be saved for future use,” but that “no new applications [would] be accepted.” See letter on file with author.
- The PAB website explains the hearing process as follows:
You must be present in person for your hearing before the Pardon Advisory Board. The hearing will last approximately 15 minutes. The Board will ask you questions about yourself and your application. You may present supporting witnesses, but any testimony presented by these witnesses will leave you less time to present your own case to the Board. You will not be afforded additional time in order to present your witnesses.
- In February 2017, a bill was introduced to authorize an expungement request no sooner than one year after completing the sentence, and deleting the limitation on the maximum period of imprisonment. Filing fee is $100, and the same standard applies (“the person will benefit and society will not be harmed”). See SB 53,
- An information sheet on expungement created by the Wisconsin Office of Court Operations states:
The Crime Information Bureau (CIB), which is part of the Wisconsin Department of Justice, operates the Wisconsin Criminal History Repository. The repository maintains a record of all convictions regardless of whether the court expunged your record. Anyone can make a request for this information, and employers, schools and licensing agencies often run background checks of applicants this way. For this reason, you may want to consider explaining the circumstances of your case and why the court record of the conviction was expunged.
Additionally, the case may still exist in the records of the district attorney, law enforcement, the Department of Transportation, and other agencies. The judge has no authority to require removal of those agency records. Even if your court record has been expunged, anyone who asks for information about your conviction from another agency may be able to obtain it.
- See, e.g., the Milwaukee Journal Sentinel’s investigative report on the deferred prosecution program of the Milwaukee County District Attorney, available at http://www.jsonline.com/watchdog/watchdogreports/111733029.html. While the report found that some admitted to the program had serious criminal records that should have made them ineligible under the DA’s own policy, it also reported a 70% rate of successful completion of probation in 910 cases studied.
- These sections were renumbered in 2019 by Act 278.