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SCOW: Single mandatory felony DNA surcharge not punitive

State v. Tabitha A. Scruggs, 2017 WI 15, affirming a published court of appeals decision; 2014AP2981-CR, 2/23/2017; case activity (including briefs)

On June 30, 2013, Wisconsin enacted its biennial budget bill. Among its provisions were changes to the DNA surcharge applied to criminal convictions in Wisconsin. The $250 surcharge became mandatory rather than discretionary for all felonies (rather than just a few as previously), and would now be applied on a per-count basis rather than once per case. The bill also created a new, mandatory $200-per-count surcharge for misdemeanors.

Here’s the trouble. The bill delayed the effective date of these changes until January 1, 2014, but rather than applying them to crimes committed after that date, it applied them to convictions entered after that date. That is, it retroactively increased the consequences of criminal conduct occurring before the change in law, raising apparent ex post facto concerns. Three and a half years and a great deal of litigation later, the state’s appellate courts have established some rules for determining whether a particular surcharge is permissible:

  1. The misdemeanor surcharge is invalid where the crime was committed before January 1, 2014, and the sentencing occurred before April 1, 2015. State v. Elward.
  2. For multi-count cases, multiple felony surcharges are invalid where the crimes were committed before January 1, 2014. State v. Radaj.
  3. Now, with this decision, single, mandatory felony surcharges are allowed, regardless of date of commission, for any crime sentenced after January 1, 2014.

(There has not been an authoritative decision about single or multiple misdemeanors committed before 1/1/14 and sentenced after 4/1/15. Perhaps that case is or will be yours!)

The majority here holds that the change from a discretionary surcharge to a mandatory one is not punitive in either intent or effect, and thus does not violate the prohibition on ex post facto laws. Briefly, as to legislative intent, the court relies upon the statutory labeling of the assessment as a “surcharge” rather than a “fine,” and the fact that the surcharge was enacted along with other provisions increasing the collection and analysis of DNA. (¶¶21, 24-27). It rejects Scruggs’s arguments that the placement of the language imposing the surcharge within the sentencing chapter, along with the fact that the surcharge bears no apparent relation to the actual costs of collecting and processing a particular person’s DNA, show a punitive intent. (¶¶23, 28-37).

As to punitive effect, it’s a seven(!)-factor test. Seven non-dispostive, non-exhaustive factors. Here they are, followed by a link to the discussion, for the non-exhausted:

The seven factors are whether: (1) the 2014 Amendment involves an affirmative disability or restraint; (2) it has historically been regarded as a punishment; (3) it comes into play only on a finding of scienter; (4) its operation will promote the traditional aims of punishment-retribution and deterrence; (5) the behavior to which the 2014 Amendment applies is already a crime; (6) an alternative purpose to which it may rationally be connected is assignable for it; and (7) it appears excessive in relation to the alternative purpose assigned. These factors provide “useful guideposts.” However, they are not exhaustive nor is any one factor dispositive.

(¶41 (citations omitted)). The court concludes these factors, on balance, favor the state.

Justice Abrahamson dissents. She finds the mandatory surcharge punitive, both in intent and effect. She ends with a plea to consider the real-world effects of multiplying fees, surcharges, etc.:

Before I conclude, I briefly discuss the obvious: The effect of the mandatory DNA surcharge statute should be evaluated in the context of a criminal justice system that exacts a serious toll on criminal defendants. Collateral consequences already burden many aspects of a defendant’s daily life, such as limiting employment and housing options. Persons sentenced for a misdemeanor or felony in Wisconsin face up to 238 collateral consequences. And, on top of this, criminal justice debt is stacking up for many defendants at a staggering rate. Collateral consequences and criminal justice debt appear to be leading criminal offenders into a downward spiral of debt and recidivism.

I thus urge 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 statutory collateral consequences.


{ 2 comments… add one }
  • Dr. Jonah Dawson February 25, 2017, 12:27 am

    Here here Justice Abrahamson…well said. We hope and pray your incredible insights will take hold…

  • Bill S. February 25, 2017, 3:22 pm

    What a mess the Wisconsin appellate courts have made out of the DNA surcharge! Only one justice (Abrahamson, J., para. 66 at fn. 8) was capable of applying the SCOTUS precedents that set forth the federal constitutional standard for determining when a statute is “punitive,” namely that the statute must be examined on its face. Here, instead, 6 members of the SCOW failed to give any direct explanation why they disregarded that standard and invented an as-applied test that looks to the fact of how many DNA surcharges were ordered in the particular case.

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