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  • WisBar News
    October 30, 2015

    $250 DNA Surcharge “Not Punitive,” Does Not Violate Constitution

    Deborah G. Spanic

    Oct. 30, 2015 – Tabitha A. Scruggs was convicted for burglary, and the court imposed a $250 DNA surcharge on her at her sentencing. Scruggs filed a motion asking for the $250 DNA surcharge to be vacated, as she felt it was punitive and violated the ex post facto clauses of the U.S. and Wisconsin Constitutions.

    Scruggs argued that on Dec. 30, 2013, when she committed the crime, the Jan. 1, 2014 amendment to the Wisconsin law (Wis. Stat. § 973.046(1r)(a)) that made the DNA surcharge mandatory for felony convictions had not yet been in effect. The law was in effect when Scruggs was sentenced in April 2014.

    The Racine County Circuit Court denied Scruggs’ motion, noting it was required to impose the $250 DNA surcharge under the amended law, and because it was enacted on June 30, 2013, it was “in effect” when Scruggs committed the crime, even though the law wasn’t legislatively made effective until Jan. 1, 2014. Scruggs appealed.

    A three-judge panel for the District II Court of Appeals, in State v. Scruggs, 2014AP2981-CR (Oct. 21, 2015) affirmed the circuit court’s denial of Scruggs motion, although not on the ground that the law was in effect when the crime was committed, but rather because it was not punitive.


    The state conceded that the circuit court erred when it held that the 2014 amendment was in effect when Scruggs committed the crime, but argued that regardless, the law as it was applied to Scruggs was not punitive and did not violate the ex post facto clauses of the U.S. or Wisconsin Constitutions.

    Deborah SpanicDeborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.

    Chief Judge Lisa S. Neubauer, in drafting the panel’s opinion, noted that in determining whether a law violates the ex post facto clause, the court first evaluates, “if … the legislature’s intent was to impose a civil and nonpunative regulatory scheme.” If that was the case, “a court must next determine whether the sanctions imposed by the law are so punitive either in purpose or effect so as to transform what was clearly intended as a civil remedy into a criminal penalty.”

    In evaluating the legislature’s intent around the 2014 amendment to the statute, the panel noted, “the legislature was motivated by a desire to expand the State’s DNA bank and to offset the cost of that expansion, rather than a punitive intent.” The 2014 amendment was part of a larger state initiative to expand the collection of DNA samples. As a result, the law specifies that the $250 surcharge on felony convictions was to be deposited with the Department of Justice to pay for operating its DNA data bank.

    “That the DNA surcharge is specifically dedicated to fund the collection and analysis of DNA samples and the storage of DNA profiles – all regulatory activities – evidences a nonpunitive cost-recovery intent,” the panel stated.

    In addition, the panel added, “The relatively small size of the surcharge also indicates that the fee applied here was not intended to be a punishment, but rather an administrative charge to pay for the collection of the sample from Scruggs, along with the expenditures needed to administer the DNA data bank. Scruggs has made no showing to the contrary.” The $250 fee is also consistent with similar surcharges in other jurisdictions.

    “Scruggs has failed to carry her burden showing beyond a reasonable doubt that the legislature intended to punish her,” the panel concluded.

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