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  • WisBar News
    February 23, 2017

    Supreme Court: Mandatory DNA Surcharge Not an Ex Post Facto Violation

    Joe Forward

    DNA Surcharge

    Feb. 23, 2017 – The Wisconsin Supreme Court, in a 6-1 decision, recently ruled against a convicted felon who was forced to pay a mandatory $250 DNA surcharge, even though the surcharge was discretionary when she committed the felony crime.

    In 2013, the state charged Tabitha Scruggs with one count of burglary as a party to a crime, a felony. She later pled no contest. The judgment of conviction ordered Scruggs to submit a DNA sample and pay a $250 surcharge for processing and analysis.

    When Scruggs committed the crime, judges had discretion to impose the $250 DNA surcharge. Before she was sentenced, in June 2014, Wisconsin enacted a law that made the DNA surcharge mandatory for sentences imposed starting in 2014.

    The law imposes a mandatory $250 surcharge for each felony conviction, $200 for each misdemeanor conviction. The circuit judge noted the new law in imposing the DNA surcharge, concluding it was required. The judge did not make a discretionary decision.

    Scruggs, in a postconviction motion, argued that imposing the mandatory DNA surcharge against her violated a prohibition against ex post facto laws.

    The U.S. and Wisconsin constitutions prohibit laws that make the punishment more burdensome after the crime is committed. Scruggs said the mandatory surcharge made her punishment more burdensome after she committed the crime in 2013.

    A circuit court denied her motion, and a state appeals court affirmed, concluding Scruggs did not meet her burden to prove that Wisconsin’s mandatory law on DNA surcharges was an ex post facto law that violated her constitutional rights.

    In State v. Scruggs, 2017 WI 15 (Feb. 23, 2017), the state supreme court affirmed the appeals court (6-1), concluding that Scruggs failed to show the DNA surcharge “is punitive in either intent or effect and is violative of the ex post facto prohibition.”

    Justice Shirley Abrahamson was the lone dissenter. Making the surcharge a certainty after Scruggs committed the crime violated the constitution, Abrahamson concluded, because the surcharge was only a potential penalty when the crime was committed.

    Surcharge Not Punitive

    The majority, in an opinion by Justice Ann Walsh Bradley, noted that Scruggs had to overcome a “heavy burden” to show her constitutional rights were violated. She had to show the DNA surcharge statute was unconstitutional “beyond a reasonable doubt.”

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The state conceded that the surcharge would be an unconstitutional ex post facto law as retroactively imposed against Scruggs, but only if the surcharge is “punitive.” The state argued, and the majority agreed, that the law is not punitive as applied to Scruggs.

    A statute is punitive, the majority explained, if the legislature intends to use the statute as punishment or, even if punishment was not the legislature’s intent, the form and effect of the statute works to transform a civil remedy into criminal penalty.

    The majority concluded that the legislature intended the DNA surcharge as a civil penalty, not a criminal penalty.

    “The amount of the DNA surcharge for a single felony conviction suggests that the fee was not intended to be a punishment,” Justice A.W. Bradley wrote. “[I]t is instead intended to offset the costs associated with the collection and analysis of samples together with the maintenance of the state’s DNA databank.”

    In addition, the majority concluded that it did not work like a criminal penalty, in form and effect, despite Scruggs’s argument that the $250 surcharge is imposed for each conviction but only one DNA sample is processed and analyzed for each defendant.

    The majority distinguished the case from State v. Radaj, in which the appeals court ruled that imposing a $1,000 DNA surcharge for four felony convictions ($250 for each conviction) violated the prohibition on ex post facto laws. Like this case, the defendant in Radaj committed the crimes before the surcharge became mandatory in Wisconsin.

    “Unlike Radaj, which involved multiple surcharges for multiple felony convictions, this case addresses whether a single DNA surcharge for a single felony conviction is punitive,” Justice A.W. Bradley wrote.

    “There is no evidence that the relatively small $250 surcharge is grossly disproportionate to the cost of collecting, analyzing, and maintaining DNA specimens.”


    Justice Abrahamson said retroactive application of the mandatory surcharge violates the prohibition against ex post facto laws, even for single felony convictions.

    “[O]n its face, the mandatory DNA surcharge statute does not bear a rational connection to funding the State’s DNA program,” wrote Abrahamson, noting that the surcharge is collected per conviction regardless of whether DNA is actually collected or analyzed.

    Justice Abrahamson also urged the legislature and the Wisconsin Judicial Council “to take notice of and consider the unintended consequences of the increasing statutory imposition of debt on criminal defendants and the increasing collateral consequences.”

    She said collateral consequences and criminal justice debt “appear to be leading criminal offenders into a downward spiral of debt and recidivism.”

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