Defendants who committed a misdemeanor offense before
April 1, 2015 January 1, 2014, cannot be made to pay the mandatory $200 DNA surcharge that is supposed to be imposed for each misdemeanor conviction beginning January 1, 2014, because imposition of the surcharge on that class of defendants violates the ex post facto clauses of the state and federal constitutions. [See UPDATE below regarding the date change.]
The state budget act enacted in July 2013 amended § 973.046 to impose a $200 DNA surcharge for defendants found guilty of misdemeanors and require circuit courts to begin imposing the surcharge on January 1, 2014. See 2013 Wis. Act 20, §§ 2355, 9426(1)(am). At the same time, however, circuit courts had to wait until April 1, 2015, before they could actually order misdemeanants to provide a biological specimen for DNA analysis. 2013 Wis. Act 20, §§ 2356, 9426(1)(bm).
Elward was sentenced on January 14, 2014, for an offense he committed in July 2013. The circuit court imposed the $200 DNA surcharge. Elward argues that making him pay the surcharge violates the constitutional prohibitions against ex post facto laws. The state conceded Elward’s argument and the court of appeals, applying the reasoning in Mueller v. Raemisch, 740 F.3d 1128 (7th Cir. 2014), agrees:
¶7 …[T]he timing of Elward’s offense with relation to the rollout of the statutory scheme made the $200 DNA surcharge a fine instead of a fee. Elward committed a misdemeanor before the law imposed the surcharge. When the circuit court sentenced Elward, the law required the surcharge, but did not permit the State to actually collect a DNA sample. See 2013 Wis. Act 20, § 9426(1)(am) and (bm). As a result, the $200 surcharge bore no relation to the cost of a DNA test because he never had to submit to a test. The State received money for nothing. This served only to punish Elward without pursuing any type of regulatory goal. Therefore, the surcharge as applied to Elward was a fine, not a fee, and violated the Constitution’s ex post facto clause. ….
The budget also required imposition of a DNA surcharge for all felonies, not just the limited class of sex offenses for which imposition of a DNA surcharge was mandatory under prior law, § 973.046(1r) (2011-12). If you’re wondering whether mandating the surcharge in all felony cases also violates the ex post facto clauses, stay tuned: District 4 is issuing a decision on that question on May 21, in State v. Gregory Mark Radaj, 2014AP2496-CR. The state does not concede the ex post facto violation in Radaj’s case
, but the logic in this case suggests District 4 should reach the same result as District 2 unless the trial court exercised its discretion to order the DNA surcharge, which is something it could do for any felony under prior law, § 973.046(1g) (2011-12). CORRECTION: We struck the last part of the preceding comment because it overlooked the fact that, since the 1999 budget act, the statute has mandated collection of a biological specimen from anyone convicted of a felony. See § 973.047(1f) (1999-00), as amended by 1999 Wis. Act 9, § 3202k. Thus, the logic of this case doesn’t help the challenge to the mandatory DNA surcharge in felony cases because the existing requirement that all felons provide a specimen supports an argument that the surcharge on felons bears a relation to the cost of the DNA database.
UPDATE (5/21/15): Two points. First, our post on Radaj is here.
Second, a very astute reader pointed out that the very first line of this post overstates the court’s holding. Because Elward committed his crimes before the mandatory surcharge took effect on January 1, 2014, the court doesn’t explicitly address cases in which the crimes were committed after January 1, 2014, but before April 1, 2015, when the specimen collection law took effect. Indeed, the state’s concession was limited to misdemeanants who committed their offense before January 1, 2014, and the language quoted above from ¶7 refers to the fact that “Elward committed a misdemeanor before the law imposed the surcharge.” Thus, this case doesn’t decide the question of whether the DNA surcharge can be imposed on misdemeanors committed during that 15-month period, and we’ll have to wait for another case that squarely addresses that question.
In the meantime, however, as a commentator below already noted, the decision does provide a basis for arguing that the ex post facto clauses also prohibit imposing a surcharge on a misdemeanor committed between January 1, 2014, and April 1, 2015. In brief, the argument is this: The court finds the surcharge punitive because it bears no relation to the purpose of paying for the collection and testing of a specimen and entry of the data into the DNA database. The lack of relationship is due to the fact that no misdemeanant has to provide a specimen till April 1, 2015. Because that lack of relationship obtains for any misdemeanor committed before April 1, 2015, it should likewise be unlawful to impose the mandatory surcharge on misdemeanors committed between January 1, 2014, and April 1, 2015.