Addressing a question left open by State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, the court of appeals holds that the constitutional prohibition against ex post facto laws does not bar the mandatory imposition of a DNA surcharge for a single felony conviction based on conduct that was committed before the mandatory DNA surcharge requirement took effect.
Scruggs committed a felony (burglary as a party to a crime) on December 30, 2013. At the time, § 973.046(1g) (2011-12) provided that, upon conviction, the sentencing court could, in its discretion, impose a $250 DNA surcharge for a burglary conviction. (For certain sex offenses, of course, the surcharge was mandatory, § 973.046(1r) (2011-12.) Two days later, on January 1, 2014, amendments made to § 973.046 by 2013 Wis. Act 20 took effect. Those amendments require the sentencing court to impose the surcharge for every felony conviction. See 2013 Act 20, §§ 2353 and 2354 and 9426(1)(am). Scruggs was sentenced in April 2014, and the judge concluded he was required to impose the surcharge despite the fact Scruggs’s offense occurred before January 1, 2014. (¶¶2-4). Scruggs argued that applying Act 20’s changes to her violated the state and federal constitutions ban on ex post facto laws.
Whether a new law is a nonpunitive civil statute or a punitive criminal statute is decided by applying the two-part “intent-effects” test. State v. Rachel, 2002 WI 81, ¶¶39-42, 254 Wis. 2d 215, 647 N.W.2d 762. That test first asks whether the legislature’s intent was to punish or, rather, to impose a non-punitive regulatory scheme; if the legislature’s intent was non-punitive, the test then asks whether, despite that fact, the effect of the law is punitive. (¶7). As we explained here, Radaj assumed Act 20’s amendments did not have punitive intent, but held that their effect was punitive in cases in which they required a court to impose the DNA surcharge for every one of multiple felonies that were committed before January 1, 2014. The court of appeals now expressly holds Act 20’s amendments didn’t have punitive intent, but were instead consistent with the overall of the law’s expansion of the DNA collection law, for the following reasons.
To start, the court notes the additional money collected by the mandatory surcharge is dedicated to maintaining the DNA database, and that evinces “a nonpunitive cost-recovery intent.” (¶¶11-12). Second, there’s no evidence that the $250 fee irrationally exceeds the cost of collection, analysis, and administration of the DNA data bank. (¶13). This is true despite the discrepancy between the surcharge assessed for a felony ($250) as opposed that that assessed for a misdemeanor ($200), as “the legislature might have reasoned that because DNA evidence is more often used in prosecuting felony cases and, in turn, in subsequent law enforcement investigations, that those offenders should bear more of the cost of operating the DNA data bank.” (¶14). Third, the amount of the fee for a felony case hasn’t changed: It was $250 before January 1, 2014, and it is still $250. “Since there has been no change in the amount of the DNA surcharge on a felony conviction, it cannot be said the same surcharge now reflects that the legislature was motivated by a punitive intent.” (¶14). Finally, the fee assessed against felony offenders like Scruggs is a “surcharge,” a civil nonpunitive label, rather than as a “fine” or “penalty.” (¶17).
Having concluded Act 20’s amendments did not intend to punish, the next step is to ask whether, despite that intent, the effect of the amendments is punitive. As to this second step the court says merely that “Scruggs has not carried her burden of showing that the effect of the $250 DNA surcharge is to impose a criminal penalty. For support, Scruggs relies on many of the same arguments [regarding punitive intent] as demonstrative of the punitive effect of the $250 DNA surcharge, which we have already rejected as lacking merit.” (¶18).
The court spills all its ink discussing the first step, punitive intent; its treatment of the second step—punitive effect—can’t even be characterized as “perfunctory.” Indeed, for all practical purposes this decision collapses the required two-step test into a one-step inquiry into legislative intent. But the steps are distinct, as the inquiry into the effects of the law looks at different factors (which, it should be noted, the decision doesn’t even bother to list): Whether the law involves an affirmative disability or restraint; whether the law’s effect has historically been regarded as a punishment; whether the law comes into play only on a finding of scienter; whether the law’s operation promotes the traditional aims of punishment—namely, retribution and deterrence; whether the behavior to which the law applies is already a crime; whether there’s a rationally-related alternative purpose for the law; and whether the law is excessive in relation to that alternative purpose. Rachel, 254 Wis. 2d 215, ¶43. Given the different factors to be considered in each step, it’s not necessarily obvious that arguments failing to show punitive intent will also fail to show punitive effect. And if it is obvious, it should be easy for the court to enlighten the rest of us as to why that’s the case.
The court’s failure to explicate why there’s no punitive effect highlights another point: The decision doesn’t address another factual scenario that’s likely to arise, namely, application of the mandatory assessment law to defendants who are sentenced after January 1, 2014, for a felony committed before January 1, 2014, and who provided a DNA sample and/or paid a DNA surcharge in a previous case. Will application of the mandatory DNA surcharge to a defendant like that violate ex post facto? Well, looking solely at the last factors relevant to the effect of the law, what is the rational connection between the mandatory surcharge and the purposes and maintenance of the DNA data bank in a case like that? Here’s one possible answer: Zero, if the defendant has already paid a surcharge; and slightly more than zero if the defendant provided the sample but has never paid a surcharge, which means application of the mandatory surcharge law in this situation violates the ex post facto prohibition. But we’ll have to wait till another day for the final answer.