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SCOW overrules Elward and Radaj; mandatory DNA surcharge doesn’t violate ex post facto clause

State v. Jamal L. Williams, 2016AP883-CR, 2018 WI 59, 5/30/18, reversing in part, a published court of appeals opinion, 2017 WI App 46, case activity (including briefs)

In a 5-0 opinion (Roggensack and A.W. Bradley did not participate) SCOW overruled two court of appeals decisions, State v. Elward and State v. Radaj, which had held that the §973.046  mandatory DNA surcharge violated the Ex Post Facto Clauses of the state and federal constitutions. SCOW delved into the reasoning of both cases and found it “faulty.” It further held that a circuit court may consider a defendant’s opposition to paying restitution as part of his character or lack of remorse when choosing a sentence.

Mandatory DNA surcharge. Elward held that the DNA surcharge statute imposed ex post facto punishment for any defendant sentenced for a misdemeanor conviction between January 1, 2014 and April 1, 2014. During that period, the law required the surcharge but did not permit the State to collect a DNA sample. The statute thus punished Elward, who sentenced in that period, without serving any regulatory purposes. See our post on Elward. Along the same lines, Radaj held that the statute punished a defendant by requiring him to pay 4 surcharges for 4 crimes when he gave only one DNA sample. See our post on Radaj.

The Ex Post Facto Clause prohibits enforcement of a statute that makes the punishment for a crime more burdensome after the crime was committed. To determine whether the statute is punitive, courts apply the “intents-effects” test of Hudson v. United States, 522 U.S. 93 (1971). The first question is whether the legislature intended the DNA surcharge to be punishment. SCOW answers “no” and explains that the court of appeals wrongly assumed that the statute imposed the surcharge on a defendant to pay for analyzing his own DNA sample. Opinion ¶27.

¶29 The non-punitive purpose of the mandatory DNA surcharge statute is not to cover the DNA-analysis-related costs incurred for the specific conviction for which it is being imposed. Rather, the non-punitive purpose is to fund the costs associated with the DNA databank by charging those necessitating its existence——convicted criminals. That means a defendant pays a surcharge for every conviction irrespective of whether his DNA profile already exists in the databank and whether he submits only one DNA sample. This is what the law says. We overrule Elward and Radaj. The reasoning employed in those cases was unsound and the cases were wrongly decided. Because the court of appeals’ majority opinion in this matter relied on Elward and Radaj, its holding on the DNA surcharge is faulty and must be reversed.

The second question is whether, regardless of the legislature’s intent, the surcharge statute has the effect of operating as punishment The short answer to this question is also “no” based on SCOW’s decision last term in State v. ScruggsOpinion ¶31. The long answer involves the application of 7 factors from Kennedy v. Menodza-Martinez, 372 U.S. 144, 168-19 (1963). Feel free to read at analysis at ¶¶30-42.

Improper sentencing factor. Williams argued that the circuit court imposed a harsher sentence because he refused to pay restitution but this didn’t fly with SCOW:

¶44 We hold the circuit court may refer to a defendant’s failure to voluntarily pay restitution when the reference is directly linked to a proper sentencing factor. Because the circuit court’s reference to restitution at Williams’ sentencing was directly linked to a proper sentencing consideration——Williams’ lack of remorse——the sentencing court did not erroneously exercise its discretion.

Justice Abrahamson, who dissented in Scruggs, “largely agrees” with the majority opinion here and concurs in the mandate.  She disagrees with “the majority’s suggestion that there is never a circumstance under which the mandatory DNA surcharge would be considered punishment. Opinion ¶60 (citing Majority ¶38).

¶66 In the instant case, Williams was convicted of only one felony. The court does not have before it a defendant with multiple felony convictions as the court of appeals did in Radaj.

¶67 The majority should reserve judgment on whether a DNA surcharge can ever be so expensive that it constitutes punishment under the facts of a particular case. Without knowing what the DNA surcharge actually is in a particular case, how can a court determine whether the surcharge promotes the traditional aims of punishment? How can a court determine whether the surcharge is excessive in relation to the nonpunitive purpose assigned to the mandatory DNA surcharge statute without knowing what the DNA surcharge actually is? Because of the variable nature of the DNA surcharge, these questions must be answered on a case-by-case basis.

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