                                                                   2017 WI 15

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:                2014AP2981-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Tabitha A. Scruggs,
                                   Defendant-Appellant-Petitioner.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED:           February 23, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           October 13, 2016

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Racine
   JUDGE:                Allan B. Torhorst

JUSTICES:
   CONCURRED:
   DISSENTED:            ABRAHAMSON, J. dissent (Opinion filed).
   NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there was a brief
and oral argument by Dustin C. Haskell, assistant state public
defender.


       For    the       plaintiff-respondent   the   cause   was   argued   by
Jeffrey J. Kassel, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
                                                                            2017 WI 15
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2014AP2981-CR
(L.C. No.    2014CF7)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin

              Plaintiff-Respondent,
                                                                         FILED
      v.                                                             FEB 23,2017

Tabitha A. Scruggs,                                                    Diane M. Fremgen
                                                                    Clerk of Supreme Court

              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                     Affirmed.



      ¶1      ANN    WALSH   BRADLEY,      J.    Petitioner,       Tabitha      Scruggs

("Scruggs"),        seeks    review   of    a   published       court     of    appeals

decision denying her motion for                 postconviction        relief.1        The
court of appeals determined that Scruggs failed to demonstrate

beyond a reasonable doubt that imposing a now mandatory $250 DNA

surcharge      for      a    single   felony      conviction         constitutes         a

punishment, violating the prohibition against ex post facto laws

set forth in the United States and Wisconsin Constitutions.


      1
       State v. Scruggs, 2015 WI App 88, 365 Wis. 2d 568, 872
N.W.2d 146 (affirming judgment and order entered by the circuit
court for Racine County, Allan B. Torhorst, J., presiding).
                                                                   No. 2014AP2981-CR



    ¶2      Specifically, Scruggs contends that the imposition of

this single $250 DNA surcharge is punitive for ex post facto

purposes because it was discretionary when she committed the

felony    offense      but    mandatory   when     she   was   sentenced.       She

asserts    that       the    statutory    amendment      making    mandatory     the

imposition of the $250 DNA surcharge at sentencing constitutes

an unconstitutional ex post facto law because it retroactively

imposes punishment on those who committed a crime before the

amendment's January 1, 2014 effective date.

    ¶3      Like the court of appeals, we conclude that Scruggs

has not met her burden of establishing beyond a reasonable doubt

that the amended statute is unconstitutional.                  She has failed to

show that the mandatory imposition of this DNA surcharge, which

was discretionary at the time she committed the single felony

offense,    is    punitive      in   either   intent      or   effect    and   thus

violative of the ex post facto prohibition.

    ¶4      Accordingly, we affirm the decision of the court of

appeals, denying Scruggs’ postconviction motion to vacate the
$250 DNA surcharge.

                                          I

    ¶5      The underlying facts in this case are not in dispute.

On December 30, 2013, Scruggs was charged with one count of

burglary    as    a     party   to   a    crime,    contrary      to   Wis.    Stat.

§§ 943.10(1m)(a) & 939.05(1) (2011-12).2                 She pleaded no contest


    2
         Wis. Stat. § 943.10(1m)(a) provides:

                                                                        (continued)
                                          2
                                                        No. 2014AP2981-CR



to the charged offense on April 1, 2014, and was sentenced on

June 9, 2014.

    ¶6     The circuit court sentenced Scruggs to 18 months of

initial   confinement   and   18   months   of   extended    supervision.

Scruggs' sentence was stayed and she was placed on probation for

three years.     The judgment of conviction provided that Scruggs

submit to a DNA sample and pay a $250 DNA analysis surcharge.

    ¶7     At the time Scruggs committed the offense on December

30, 2013, Wis. Stat. § 973.046 (2011-12) was in effect.                It

provided that the decision of whether to impose a DNA surcharge

was within the circuit court's discretion:

    (1g) Except as provided in sub. (1r), if a court
    imposes a sentence or places a person on probation for
    a   felony  conviction,   the   court   may  impose  a
    deoxyribonucleic acid analysis surcharge of $250.
    ¶8     On January 1, 2014, Wis. Stat. § 973.046(1r)(a) (2013-

14) ("2014 Amendment") took effect pursuant to              2013 Wis. Act


    (1m) Whoever intentionally enters any of the following
    places without the consent of the person in lawful
    possession and with intent to steal or commit a felony in
    such place is guilty of a Class F Felony:

           (a)   Any building or dwelling.

Wis. Stat. § 939.05(1) provides:

    Whoever is concerned in the commission of a crime is a
    principal and may be charged with and convicted of the
    commission of the crime although the person did not
    directly commit it and although the person who directly
    committed it has not been convicted or has been convicted
    of some other degree of the crime or of some other crime
    based on the same act.


                                    3
                                                                     No. 2014AP2981-CR



20.     The Act specified that the mandatory DNA surcharge would

apply       to    sentences   imposed        on    or   after    January     1,   2014,

regardless of when the underlying offense occurred.                         2013 Wis.

Act 20, §§ 9326, 9426.             Thus, when Scruggs was sentenced on June

9,    2014,      the   amended     statute    made      the   imposition    of    a   DNA

surcharge mandatory:

       (1r) If a court imposes a sentence or places a person
       on    probation,   the   court    shall    impose   a
       deoxyribonucleic acid analysis surcharge, calculated
       as follows:

                 (a)   For each conviction for a felony, $250.

                 (b)   For each conviction for a misdemeanor, $200.

Wis. Stat. § 973.046(1r) (2013-14).
       ¶9        Scruggs   filed     a   postconviction         motion     seeking     to

vacate the $250 DNA surcharge.                    She argued that imposing this

mandatory DNA surcharge violated the Ex Post Facto Clauses of

the United States and Wisconsin Constitutions because imposition

of the DNA surcharge was discretionary at the time she committed

the felony offense.           According to Scruggs, the statutory change

from a discretionary DNA surcharge to a mandatory DNA surcharge

makes the 2014 Amendment punitive for a defendant sentenced for

a single felony offense after the effective date of the 2014

Amendment for an offense committed before it.

       ¶10       Scruggs argued that the circuit court instead should

have applied Wis. Stat. § 973.046 (2011-12) as it existed at the

time she committed the offense and exercised its discretion in

determining whether to impose a $250 DNA surcharge.                        The circuit



                                             4
                                                                             No. 2014AP2981-CR



court concluded that it was required to impose the mandatory

$250 DNA surcharge and denied Scruggs' postconviction motion.3

       ¶11     The    court    of       appeals          affirmed   the    circuit        court,

albeit with a different rationale.                          State v. Scruggs, 2015 WI

App 88, ¶19, 365 Wis. 2d 568, 872 N.W.2d 146.                                It determined

that       Scruggs    "has    failed         to    demonstrate      beyond       a    reasonable

doubt that the $250 DNA surcharge that the circuit court imposed

on her for a single felony conviction constitutes a punishment

and, thus, [did not] violate[] the prohibitions against ex post

facto        laws      in     the        U[nited]           S[tates]       and        Wisconsin

Constitutions."         Id.

                                                   II

       ¶12     Whether a statute violates the Ex Post Facto Clauses

of the Wisconsin and United States Constitutions is a question

of     law     that     this        court          reviews      independently           of   the

determinations rendered by the circuit court and the court of

appeals.       State v. Haines, 2003 WI 39, ¶7, 261 Wis. 2d 139, 661

N.W.2d 72.           There    is    a    strong          presumption      that       legislative
enactments are constitutional.                          Bostco LLC v. Milwaukee Metro.

Sewerage       Dist.,        2013       WI        78,    ¶76,   350    Wis. 2d 554,          835


       3
       The circuit court incorrectly reasoned that the 2014
Amendment was in effect when Scruggs committed the offense
because the amended statute had been published.       The State
concedes that the circuit court erred in concluding that the
2014 Amendment was in effect when Scruggs committed the offense.
However, the State continues to maintain that the retroactive
application of the 2014 Amendment is not an ex post facto
violation because it is not punitive.


                                                    5
                                                              No. 2014AP2981-CR



N.W.2d 160.     Scruggs has the burden of establishing beyond a

reasonable     doubt     that      the       challenged     legislation       is

unconstitutional.      Chappy v. Labor & Indus. Review Comm'n, Dep't

of Indus., Labor & Human Relations, 136 Wis. 2d 172, 184-85, 401

N.W.2d 568 (1987).

     ¶13    A party challenging the constitutionality of a statute

"bears a heavy burden."         State v. Smith, 2010 WI 16, ¶8, 323

Wis. 2d 377, 780 N.W.2d 90 (citing State v. Cole, 2003 WI 112,

¶11, 264 Wis.2d 520, 665 N.W.2d 328).             "It is insufficient for

the party challenging the statute to merely establish either

that the statute's constitutionality is doubtful or that the

statute is probably unconstitutional."            Id.     "Instead, the party

challenging a statute's constitutionality must 'prove that the

statute is unconstitutional beyond a reasonable doubt.'"                      Id.

(quoting Cole, 264 Wis. 2d 520, ¶11).

                                     III

     ¶14    At the outset we observe            the basic premise that a

statute    "which   makes   more   burdensome      the     punishment   for    a
crime[] after its commission" is prohibited by the Ex Post Facto

Clauses of the United States and Wisconsin Constitutions.4                State


     4
       Scruggs does not argue that she has greater protection
under the Ex Post Facto Clause of the Wisconsin Constitution
than she has under the United States Constitution.           She
acknowledges that this court generally looks to United States
Supreme Court decisions construing the Ex Post Facto Clause of
the United States Constitution as a guide to construing the Ex
Post Facto Clause of the Wisconsin Constitution.    See State v.
Thiel, 188 Wis. 2d 695, 699, 524 N.W.2d 641 (1994).

                                                                  (continued)
                                         6
                                                                  No. 2014AP2981-CR



v. Thiel, 188 Wis. 2d 695, 703, 524 N.W.2d 641 (citing Collins

v. Youngblood, 497 U.S. 37, 42 (1990).                   Scruggs contends that

the imposition of a $250 DNA surcharge is punitive because it

was discretionary when she committed the crime but mandatory

when    she    was   sentenced.      She       asserts    that    the   statutory

amendment      making   mandatory    the       imposition    of    a    $250    DNA

surcharge at sentencing constitutes an unconstitutional ex post

facto law because it retroactively imposes punishment to those

who committed a crime before the amendment's January 1, 2014

effective date.

       ¶15    The State does not dispute Scruggs' contention that if

the DNA surcharge is punitive, amending the statute to make

mandatory what previously was discretionary is an ex post facto

violation with respect to defendants who committed their offense

before the effective date of the amendment.                      See Lindsey v.

Washington, 301 U.S. 397, 400 (1937) (concluding it is an ex

post   facto    violation   to    apply    a    new   criminal    penalty      where

"[t]he effect of the new statute is to make mandatory what was
before only the maximum sentence.").




     The Ex Post Facto      Clause of the United States Constitution
is found in Article I,      Sections 9 and 10. Section 9 provides:
"No bill of attainder       or ex post facto Law shall be passed."
Section 10 provides:        "No state shall . . . pass any . . . ex
post facto Law . . . ."

     In the Wisconsin Constitution, the Ex Post Facto Clause is
found in Article 1, Section 12, which provides:     "No . . . ex
post facto law . . . shall ever be passed . . . ."


                                      7
                                                                             No. 2014AP2981-CR



         ¶16     In determining whether a statute is punitive for ex

post         facto    purposes,     we    apply       the   "intent-effects"       test   set

forth in Hudson v. United States, 522 U.S. 93 (1997).                              See In re

Commitment of Rachel, 2002 WI 81, ¶38, 254                                Wis. 2d 215, 647

N.W.2d 762.            If we determine that the legislative intent of the

2014 Amendment was to impose punishment, the law is considered

punitive         and       our   inquiry       ends    there.       See    City    of   South

Milwaukee v. Kester, 2013 WI App 50, ¶22, 347 Wis. 2d 334, 830

N.W.2d 710.            However, if we determine that the legislature's

intent was to impose a civil and nonpunitive regulatory scheme,

we must determine next whether the 2014 Amendment is so punitive

in form and effect as to "transfor[m] what was clearly intended

as   a        civil    remedy     into     a    criminal      penalty."        Rachel,    254

Wis. 2d 215, ¶33 (citing Hudson, 522 U.S. at 99).5

         ¶17     Determining        whether       the       legislature      intended     the

statute         to    be    punitive     "is    primarily       a   matter    of   statutory

construction . . . ."                    Id.,    ¶40.        Statutory       interpretation

begins by examining the plain language of the statute.                              State ex



         5
       The terms "form" and "effect" are used in relevant case
law applying the second part of the intents-effects test without
providing an analysis that distinguishes between the two terms.
See, e.g., In re commitment of Rachel, 2002 WI 81, ¶¶42-43, 254
Wis. 2d 215, 647 N.W.2d 762; Hudson v. United States, 522 U.S.
93, 104 (1997); United States v. Ursery, 518 U.S. 267, 290
(1996).   Likewise, the parties do not argue or differentiate
between "form" and "effect."    They discuss only the "effect,"
and do not analyze the "form" when discussing the second part of
the intents-effects test. Consequently, our analysis discusses
the "effects" of the surcharge imposed.


                                                  8
                                                                           No. 2014AP2981-CR



rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110 (citations omitted).

       ¶18   Accordingly, we begin our analysis of Scruggs' claim

by    considering     whether      the    legislature          either       expressly      or

impliedly     indicated      a    preference         that    the    2014    Amendment      be

considered a civil remedy or a criminal penalty.                              See Rachel,

254    Wis. 2d 215,        ¶32     (citing       Hudson,       522        U.S.     at   99).

"Statutory language is given its common, ordinary, and accepted

meaning,     except   that       technical      or    specially-defined            words   or

phrases      are   given    their     technical         or     special       definitional

meaning."     Kalal, 271 Wis. 2d 633, ¶45 (citations omitted).

       ¶19   Sections 973.046(1r)(c)-(d) (2013-14) provide:

       If a court imposes a sentence or places a person on
       probation, the court shall impose a deoxyribonucleic
       acid analysis surcharge, calculated as follows:

             (c)    For each conviction for a felony, $250.

             (d)    For each conviction for a misdemeanor, $200.
       ¶20   We give "great deference" when the legislature labels

a statute as a civil remedy.                    Rachel, 254 Wis. 2d 215, ¶42.

Only   the    "clearest      proof"      will    convince          this    court    that    a

statute the legislature labeled as a civil remedy is in effect a

criminal      penalty.       Kester,       347       Wis. 2d 334,          ¶22   (citation

omitted).

       ¶21   The language of the 2014 Amendment, which uses the

term    "surcharge"        rather        than        "fine,"       reveals       that      the

legislature intended the statute to be a civil remedy, rather
than a criminal penalty.              As the Seventh Circuit explained in


                                           9
                                                                 No. 2014AP2981-CR



Mueller v. Raemisch, a fine is a punishment for an unlawful act

that is a "substitute deterrent for prison time" and "a signal

of social disapproval of unlawful behavior."                 740 F.3d 1128,

1133 (7th Cir. 2014).        In contrast, a fee (or in this case a

"surcharge")     is   compensation    for    a   service    provided     to,   or

alternatively compensation for a cost incurred by, the person

charged the fee.      See id.6

    ¶22       Scruggs contends that placement of the DNA surcharge

within the criminal sentencing statutes reflects a legislative

intent   to    punish.    According    to     Scruggs,     the    surcharge    is

situated squarely within the criminal sentencing statutes, which

address imposition of criminal penalties.             In contrast, Scruggs

argues, court costs and other non-punitive charges are addressed

in Chapter 814.

    ¶23       Scruggs overlooks that the DNA surcharge is explicitly

set forth in Wis. Stat. § 814.76(5) (2013-14), which makes a

distinction between a fine imposed in a criminal action and a

surcharge imposed in that action.           It provides:

    Surcharges in criminal actions. In addition to any
    fine imposed in a criminal action, a defendant shall
    pay the following surcharges if applicable:

              (5) The deoxyribonucleic acid analysis surcharge
              under s. 973.046(1r).


    6
       We observe that court costs, fees, and surcharges are all
set forth in Chapter 814 of the Wisconsin Statutes.     Although
Mueller uses the term "fee," a "surcharge" is similarly defined
as an "additional charge, tax, or cost."           Random House
Unabridged Dictionary 1914 (2d ed. 1993).


                                     10
                                                                          No. 2014AP2981-CR



Wis.   Stat.       § 814.76(5)     (2013-14).          Additionally,         the      United

States Supreme Court has determined that a forfeiture provision

may be a civil remedy even though the authorizing statute is

located in the criminal code.                Smith v. Doe, 538 U.S. 84, 94-95

(2003) (citing United States v. One Assortment of 89 Firearms,

465 U.S. 354, 364-65 (1984)).

       ¶24    Although Scruggs is correct that statutory language is

interpreted in the context of the statutory scheme, considering

closely-related           statutes,    the   placement     of   the       DNA   surcharge

within       the    criminal      sentencing        statutes    is    not       the    only

statutory context we consider.                See Kalal, 271 Wis. 2d 633, ¶46.

As the court of appeals explained, the 2014 Amendment is part of

a larger statutory initiative to expand the state's DNA databank

and "to offset the increased burden on the Department of Justice

(DOJ) in collecting, analyzing, and maintaining the additional

DNA samples . . . ."           Scruggs, 365 Wis. 2d 568, ¶11.

       ¶25    Thus, we also interpret the language used in the 2014

Amendment          of    973.046(1r)(a)       in     relation        to     Wis.       Stat.
§§ 973.046(3).           In order to offset the increased burden on the

DOJ in collecting, analyzing, and maintaining the additional DNA

samples,      the       legislature    imposed      the   mandatory        surcharge     on

felony convictions to be deposited initially with the secretary

of   administration         but   to   be    used    by   the   DOJ   to      offset     the

increased costs.

       ¶26    Wisconsin Stat. § 973.046(3) (2013-14) states:                            "All

moneys collected from deoxyribonucleic acid analysis surcharges
shall be deposited by the secretary of administration . . . and
                                             11
                                                                                     No. 2014AP2981-CR



utilized      under        s.    165.77."             Section       165.77          sets   forth    the

requirements         that       the       DOJ    provide       for       the    analysis       of   the

collected samples and maintain a state DNA databank.                                          See Wis.

Stat. § 165.77(2)(a)(1)&(3) (2013-14).                              When viewed in context,

the    imposition           of        a    now        mandatory          surcharge         that     "is

specifically dedicated to fund the collection and analysis of

DNA    samples       and    the       storage         of    DNA    profiles——all           regulatory

activities——evidences                  a    nonpunitive             cost-recovery             intent."

Scruggs, 365 Wis. 2d 568, ¶12.

       ¶27     Consulting         legislative               history      further        informs     our

interpretation.                 Kalal,          271    Wis. 2d 633,            ¶51      (legislative

history        may     be        consulted             to     confirm           a     plain-meaning

interpretation).                 The       Legislative            Fiscal       Bureau      memorandum

regarding the 2014 Amendment recognized that DNA databanks are

an important tool in criminal investigations and explained that

the    mandatory       DNA       surcharge            would       provide       funding       for   the

collection       and       analysis         of        DNA    samples       together        with     the

maintenance of the DNA databank.7                              It further explained that
"deoxyribonucleic acid testing allows a more certain and rapid

identification of offenders as well as the exoneration of those

wrongfully suspected or accused . . . ."                              Id. at 8.

       ¶28     Nonetheless,            Scruggs        argues       that    the       intent    of   the

2014       Amendment       is    punitive         because          the     surcharge       bears     no


       7
       Legis. Fiscal Bureau, DNA Collection at Arrest and the DNA
Analysis Surcharge, Paper #410 to J. Comm. on Fin. 2-3, 8 (May
23, 2013).


                                                      12
                                                                           No. 2014AP2981-CR



relation to the DNA costs created by any particular defendant.

As   the    Seventh     Circuit    explained        in    Mueller,     one      basis      for

reclassifying a surcharge as a fine "would be that it bore no

relation to the cost for which the fee was ostensibly intended

to compensate."         740 F.3d at 1133.

      ¶29    Scruggs has the burden of showing that the amount of

the surcharge imposed here demonstrates that the $250 surcharge

is punitive in intent.            Yet, she presents no evidence that the

surcharge is meaningfully greater than the costs she caused the

State to incur to collect, analyze, and curate her DNA.

      ¶30    The amount of the DNA surcharge for a single felony

conviction     suggests     that     the     fee    was    not      intended       to   be   a

punishment.        As    discussed      above,      it    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.     See, e.g., In re DNA Ex Post Facto Issues, 561 F.3d

294, 300 (4th Cir. 2009) ("the relatively small size of the

fee . . . indicate[d]         that      it    was    not       intended       to    have     a
significant retributive or deterrent value...").                            The $250 DNA

surcharge     is   consistent      with      the    DNA    fees     charged        in   other

jurisdictions, which have been considered non-punitive.                                 See,

e.g., People v. Higgins, 13 N.E.3d 169, ¶20 (Ill. App. Ct. 2014)

(citing People v. Guadarrama, 955 N.E.2d 615, 618 (Ill. App. Ct.

2011) ($250)); Commonwealth v. Derk, 895 A.2d 622, 625–30, 630

n.6 (Pa. Super. Ct. 2006) ($250); State v. Brewster, 218 P.3d

249, 251 (Wash. Ct. App. 2009) ($100).


                                             13
                                                                           No. 2014AP2981-CR



      ¶31    Scruggs asserts next that tying the surcharge to the

number and type of conviction indicates that the legislature is

using    the   surcharge       to     impose     a        penalty     on    more   serious

offenders.         She reasons that if the surcharge were actually

intended to offset the costs of DNA testing there would be no

reason to impose a higher surcharge based on the number and type

of   conviction      when    these    factors        do    not   affect      the   cost    of

obtaining a DNA sample from a single defendant.                            Scruggs further

argues      that    a     higher     surcharge        based      on    the     number      of

convictions indicates that the legislature had a punitive intent

in enacting the 2014 Amendment.

      ¶32    In State v. Radaj, the court of appeals considered a

challenge to the 2014 Amendment based upon a $1000 surcharge

imposed for four felony convictions.                       2015 WI App 50, ¶1, 363

Wis. 2d 633,       866      N.W.2d 758.          Unlike          Scruggs,      Radaj      was

convicted of four felonies and assessed a $250 surcharge for

each conviction, which totaled $1000.                     Id., ¶¶3-5.

      ¶33    The Radaj court determined that the 2014 Amendment was
an ex post facto violation under the facts of that case because

the multiple surcharges were punitive in effect.                                Id., ¶35.

However, the court left for another day the issue Scruggs raises

in this case.        It explained that "we do not weigh in on whether

the result might be different if Radaj had been convicted of a

single   felony         carrying    with   it    a    mandatory        $250     surcharge,

rather than the prior discretionary $250 surcharge."                           Id., ¶36.

      ¶34    Radaj      assumed without deciding that the legislative
intent behind the 2014 Amendment was nonpunitive.                               Id., ¶16.
                                           14
                                                                  No. 2014AP2981-CR



However, Scruggs relies on a portion of the court's discussion

of intent, in which it reasoned that "the legislative decision

to   tie   the   amount        of   the    surcharge     to     the    number     of

convictions . . . casts doubt on legislative intent."                  Id., ¶21.

     ¶35   Scruggs' reliance on Radaj is misplaced.8                   We assess

the merits of this challenge by considering the facts of this

particular   case.        As    the   court    of     appeals     in   this     case

explained,   "since   this      appeal     involves    only   a   single      felony


     8
       At oral argument the State reiterated that it was not
asking this court to overrule Radaj and again emphasized the
distinctions between the two cases. It likewise stated that it
was not challenging the holding in State v. Elward, 2015 WI App
51, 363 Wis. 2d 628, 866 N.W.2d 756, which it deemed also
readily distinguishable.

     In Elward, the court of appeals concluded that a mandatory
$250 surcharge was punitive and violated the ex post facto
clauses because a multi-phase rollout required circuit courts to
begin imposing the surcharge on January 1, 2014.       Id., ¶7.
However, courts had to wait 15 months——until April 1, 2015——
before they could actually order misdemeanants to provide a
sample for DNA analysis.    Id., ¶2 (citing 2013 Wis. Act 20,
§ 9426(1)(am) and (bm)).    As a result, Elward never had to
submit to a test. Id., ¶7.

     The State emphasized the roll out and the fact that the
defendant in Elward was never ordered to provide a sample, in
distinguishing this case:

     Elward was distinguishable because of a lag in
     misdemeanor cases between the collection and the
     imposition of the surcharge and there was a 15 month
     gap . . . .

     In this case, Ms. Scruggs did have to provide a
     sample.   So, there were [] direct costs attributable
     to Ms. Scruggs by her providing a sample that needs to
     be analyzed, collected and analyzed in the data bank.


                                          15
                                                                            No. 2014AP2981-CR



conviction, Radaj does not control our decision."                             Scruggs, 365

Wis. 2d 568,           ¶9.         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.

      ¶36    Scruggs' reliance on the fact that the surcharge is

set at a flat rate of $200 for every misdemeanor conviction and

$250 for every felony conviction also fails.                            We agree with the

court of appeals’ determination that "Scruggs has pointed to

nothing, other than speculation, that the disparity between the

surcharges        on    a    conviction       for     a    felony      as   compared     to   a

misdemeanor reflects that the legislature was motivated by a

punitive     intent."              Scruggs,    365       Wis. 2d 568,       ¶14;   see    also

Mueller, 740 F.3d at 1134 ("The burden of proving that it is a

fine is on the plaintiffs, and since they have presented no

evidence that it was intended as a fine . . . they cannot get to

first base without evidence that it is grossly disproportionate

to the annual cost . . . .").
      ¶37    Further, we observe that the 2014 Amendment did not

change      the    amount          of   the    $250       DNA   surcharge      for     felony

offenders.        The fact that there was no change in the amount of

the   surcharge         for    offenders        convicted        of     a   single     felony

suggests that there was no punitive intent in the mandatory DNA

surcharge for felony offenders.

      ¶38    In sum, Scruggs has failed to produce evidence that a

$250 DNA surcharge imposed                    against a defendant for a single
felony   conviction           is    unrelated       to    the   cost    for   which      it   is
                                               16
                                                                        No. 2014AP2981-CR



intended       to     compensate.         There    is     no     evidence     that    the

relatively small $250 surcharge is grossly disproportionate to

the     cost     of     collecting,        analyzing,      and      maintaining       DNA

specimens.          We conclude that Scruggs has failed to carry her

burden of demonstrating that the change from a discretionary to

a mandatory surcharge for a single felony conviction committed

before the effective date of the 2014 Amendment was intended as

a criminal penalty.

                                            IV

      ¶39      Having concluded that Scruggs failed to show that the

legislature intended the DNA surcharge to be a criminal penalty,

we nevertheless consider next whether the 2014 Amendment is so

punitive in effect as to transform the $250 DNA surcharge into a

criminal       penalty.         See   Rachel,     254     Wis. 2d 215,        ¶42.     In

applying       the     second    part     of     the    intent-effects        test,    we

determine whether the surcharge imposed by the 2014 Amendment is

"'so punitive in form and effect as to render them criminal'

despite the legislature's intent to the contrary."                        Id. (quoting
Hudson, 522 U.S. at 104).                We afford the legislative preference

for   the   civil      label     great    deference      and     only   the   "clearest

proof" will convince us that what has been denominated a civil

remedy is actually a criminal penalty.                   Id.

      ¶40      As Scruggs acknowledges in her brief, although similar

facts    are        considered    when     discussing          punitive     intent    and

punitive       effect,     each       requires         separate     analysis.          In

determining whether a statute is punitive in effect, Scruggs
correctly recognizes at the outset that our analysis is guided
                                            17
                                                                             No. 2014AP2981-CR



by    the    seven     factors     as      set     forth        in    Kennedy    v.      Mendoza-

Martinez, 372 U.S. 144, 168-69 (1963).                           Curiously, however, she

does not refer to the factors again when she analyzes whether

the surcharge has a punitive effect here.

       ¶41    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.                                     Id.;

see also Rachel, 254 Wis. 2d 215, ¶33.                               These factors provide

"useful guideposts."            Hudson, 522 U.S. at 99.                   However, they are

not exhaustive nor is any one factor dispositive.                               Smith v. Doe,

538 U.S. at 97 (citations omitted).

       ¶42    We address first the factors that cut in favor of the
State's      argument       that     the    2014       Amendment        is   nonpunitive         in

effect under the facts of this case.                            Under the first factor,

the    surcharge       is    nonpunitive         because        it    does   not      impose     an

affirmative          disability            or     restraint,            in      contrast         to

imprisonment.          See, e.g., Hudson, 522 U.S. at 104.                            Given our

determination regarding intent, there is also no evidence under

the    second      factor     that    the        surcharge       has     historically          been

considered a punishment.                See id. at 104-105 ("the payment of
fixed or variable sums of money [is a] sanction which ha[s] been
                                                 18
                                                                              No. 2014AP2981-CR



recognized       as    enforceable        by       civil    proceedings                since         the

original revenue law of 1789.") (quoting Helvering v. Mitchell,

303 U.S. 391, 400 (1938)).                The third factor also supports the

State   because       the     2014    Amendment          does    not        have       a       scienter

requirement.          See Rachel, 254 Wis. 2d 215, ¶51.                             A mandatory

surcharge is imposed against any person convicted of a felony,

without regard to the defendant's state of mind.                                    See Hudson,

522 U.S. at 104.

      ¶43   Conversely, there is only one factor that more clearly

cuts in favor of Scruggs.                  Under the fifth factor, the DNA

surcharge    applies          to     behavior       that        is        already          a    crime,

suggesting    that          the    surcharge       has    the        effect       of       punishing

criminal behavior.            However, this fact is insufficient to render

a monetary penalty criminally punitive.                               Id.    at 105 (citing

United States v. Ursery, 518 U.S. 267, 292 (1996) ("the fact

that a forfeiture statute has some connection to a criminal

violation is far from the 'clearest proof' necessary to show

that a proceeding is criminal.").
      ¶44   We    turn       next    to   factors        that    are        disputed            by   the

parties.     The remaining factors at issue are whether:                                       (4) the

2014 Amendment's operation will promote the traditional aims of

punishment-retribution              and    deterrence;           (6)         an        alternative

purpose to which it may be rationally connected is assignable

for   it;   and       (7)    it     appears    excessive             in    relation            to    the

alternative purpose assigned.                 See Rachel, 254 Wis. 2d 215, ¶33.

      ¶45   This portion of our discussion regarding the effect of
the 2014 Amendment is closely related to our analysis regarding
                                              19
                                                                          No. 2014AP2981-CR



whether the connection between the surcharge and the costs it is

intended to offset evinces a punitive legislative intent.                                    As

set forth more fully in the above discussion regarding intent,

the    relatively      small    size   of       a    single       $250    DNA    surcharge

indicates       that   it    does   not    serve          the    traditional       aims      of

punishment-retribution and deterrence.                          See, e.g., In re DNA,

561 F.2d at 300; see also ¶29, supra.

       ¶46   In    considering      Scruggs'         claim,       we     observe      that    a

surcharge need bear "only an approximate relation to the cost it

is meant to offset."           See Mueller, 740 F.2d at 1133.                    One basis

for reclassifying a fee as a fine would be that it "bore no

relation to the cost for which the fee was ostensibly intended

to compensate."        Id.

       ¶47   The purpose to which the surcharge is connected is to

offset the increased burden on the DOJ in collecting, analyzing,

and maintaining the additional DNA samples.                            An examination of

cases cited by the parties reflects an emphasis on considering

the    amount     of   the   surcharge     or       fee    in     question      and   asking
whether there is a rational relationship between that amount and

the non-punitive activities the surcharge or fee is intended to

fund.    For example, in Mueller, the Seventh Circuit considered

the amount of the fee in light of a list of "formidable" ongoing

tasks associated with the sex offender registry.                             740 F.3d at

1134.    Likewise, in In re DNA, the Fourth Circuit made a point

of noting that the defendant "offer[ed] nothing to suggest that

$250    is   excessive       considering    the      costs        associated       with   the
[DNA] database."        561 F.3d at 300.
                                           20
                                                                       No. 2014AP2981-CR



       ¶48    Like    these   other     courts,    we    focus    on    the   rational

connection between the amount of a fee and the costs the fee was

intended to cover.            Scruggs has failed to demonstrate that a

$250 DNA surcharge for a single felony conviction is excessive

in relation to the activities it is intended to fund.                                  See

Mueller, 740 F.3d at 1134 ("The burden of proving that it is a

fine is on the plaintiffs . . . ") (internal citations omitted).

Scruggs has offered nothing to suggest that                       the single $250

surcharge is excessive or that it bears no relation to the costs

it is intended to compensate.                See In re DNA, 561 F.3d at 300;

see also Mueller, 740 F.3d at 1133.                Thus, we have no reason to

think that the $250 surcharge is excessive or lacks a reasonable

relationship to the costs of collecting and analyzing the DNA

samples together with maintaining DNA profiles in a statewide

databank.

       ¶49    Scruggs has failed to show by the "clearest proof"

that   the     $250   surcharge       is    excessive    or   that      there     is   no

rational connection between the amount of the single surcharge
and the costs it is intended to compensate.                      We determine that

Scruggs has not met her burden of demonstrating that the change

from   a     discretionary     to   a      mandatory    surcharge      for    a   single

felony conviction that was committed before the effective date

of the 2014 Amendment is so punitive in effect as to transform a

single $250 DNA surcharge into a criminal penalty.                        See Rachel,

254 Wis. 2d 215, ¶33.




                                            21
                                                               No. 2014AP2981-CR



                                       V

    ¶50     In sum, like the court of appeals, we conclude that

Scruggs     has   not   met    her   burden     of   establishing    beyond    a

reasonable doubt that the amended statute is unconstitutional.

She has failed to show that the mandatory imposition of this DNA

surcharge, which was discretionary at the time she committed the

single felony offense, is punitive in either intent or effect

and thus violative of the ex post facto prohibition.

    ¶51     Accordingly, we affirm the decision of the court of

appeals, denying Scruggs' postconviction motion to vacate the

$250 DNA surcharge.

    By    the     Court.–The   decision    of    the   court   of   appeals   is

affirmed.




                                      22
                                                                   No.    2014AP2981-CR.ssa


     ¶52    SHIRLEY S. ABRAHAMSON, J.               (dissenting).               An ex post

facto law is any law which "makes more burdensome the punishment

for a crime, after its commission . . . ."                        State v. Thiel, 188

Wis. 2d 695, 699, 524 N.W.2d 641 (quoting Collins v. Youngblood,

497 U.S. 37, 42 (1990)).

     ¶53    When     Scruggs      committed      the        crime,       she    faced      the

possibility of a $250 DNA surcharge.                        Under the amended DNA

surcharge law, Scruggs now faces the certainty of a $250 DNA

surcharge.

     ¶54    For ex post facto purposes, the critical question is

whether     the    mandatory       DNA     surcharge          statute          makes    more

burdensome the punishment for Scruggs' crime.

     ¶55    The law of this state (accepted by the parties and the

majority    opinion)       is   that    the    mandatory,         per-conviction           DNA

surcharge statute violates the ex post facto clause when applied

to a defendant convicted in a single case of multiple crimes

committed    prior    to    the    effective     date        of    the    mandatory        DNA

surcharge statute.         See State v. Radaj, 2015 WI App 50, ¶¶35-36,
363 Wis. 2d 633, 866 N.W.2d 758.1

     ¶56    In    contrast,       the   question       in    the     instant        case   is

whether    the    mandatory     DNA     surcharge      law    requiring         a   circuit

court to impose a single $250 DNA surcharge for the conviction of

     1
       The majority opinion and the parties do not challenge
State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758.
Majority op., ¶35 n.8.         Instead, the majority opinion
distinguishes Radaj on its facts: "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." Majority op., ¶35.


                                           1
                                                             No.     2014AP2981-CR.ssa


a single crime violates the ex post facto clause when applied to

a crime committed prior to the effective date of the statute.

     ¶57    To me, a statute mandating a DNA surcharge is obviously

more burdensome on a defendant than a statute granting a circuit

court    discretion    to    impose   a   DNA   surcharge       on    a     defendant.

Indeed    United    States    Supreme     Court    case      law     supports    this

approach.     See     Lindsey   v.    Washington,      301    U.S.     397,     400-02

(1937) (changing penalty from 15-year maximum imprisonment to

mandatory 15-year imprisonment violated ex post facto clause);

Weaver v. Graham, 450 U.S. 24, 32 n.17 (1981) ("a law may be

retrospective not only if it alters the length of the sentence,

but also if it changes the maximum sentence from discretionary

to mandatory").

     ¶58    Thus, to me, the question becomes whether the more

burdensome mandatory DNA surcharge is punishment for ex post

facto purposes.

     ¶59    Radaj   already     recognizes that a         mandatory          surcharge

can constitute punishment for ex post facto purposes.
     ¶60    Although    not     considered        in   Radaj,        the    mandatory

surcharge looks like punishment because the statute explicitly

makes it    part of     a    defendant's sentence.            Other statutorily

imposed surcharges, fees, and costs are not explicitly part of

the sentence.2
     2
         Wisconsin Stat. § 973.046(1r) provides:

     (1r) If a court imposes a sentence or places a person
     on    probation,   the   court    shall    impose   a
     deoxyribonucleic acid analysis surcharge, calculated
     as follows:
                                                                           (continued)
                                          2
                                                                           No.    2014AP2981-CR.ssa


     ¶61          Because the DNA surcharge is part of the sentence and

because the sentence is the means by which circuit courts impose

punishment,            the       DNA    surcharge        has    been     considered        part    of

punishment.3                 See    State      v.    Nickel,      2010     WI     App     161,    330

Wis. 2d 750, 794 N.W.2d 765.

     ¶62          In    Nickel,         the    defendant        moved    to      vacate    the    DNA

surcharge imposed under the permissive DNA surcharge law.                                         The

court    of       appeals          explained        that   when    "a    defendant        moves    to

vacate        a        DNA        surcharge,         the       defendant        seeks      sentence

modification."                   Nickel,      330    Wis. 2d 750,        ¶5.       The    court    of

appeals rejected "the notion that the DNA surcharge is neither a

sentence          nor        a     component        of     a    sentence.           Nickel,       330

Wis. 2d 750, ¶6.4

     ¶63          Scruggs'             judgment       of       conviction         and      sentence

explicitly states that she must submit a DNA sample and pay a



     (a) For each conviction for a felony, $250.

     (b) For each conviction for a misdemeanor, $200.
     3
       See State v. Edwards, 2013 WI App 51, ¶7 n.2, 347
Wis. 2d 526, 830 N.W.2d 109 (quoting State v. Gibbons, 71
Wis. 2d 94, 97, 237 N.W.2d 33 (1976) ("[A] sentence is the means
by which the court imposes a punishment or penalty provided by
statute for the offense upon the person found guilty, as
distinguished from probation, under which sentence is either
withheld or its execution stayed.").
     4
       At least two circuit courts have vacated the mandatory DNA
surcharge imposed on defendants who committed crimes before the
effective date of the statutory mandatory DNA surcharge.      See
State v. Tharp, Milwaukee County Case Nos. 13-CF-2871 & 13-CF-
5173 (Cir. Ct. Oct. 9, 2014); State v. Vivar, Jefferson County
Case No. 13-CT-367 (Cir. Ct. Sept. 9, 2014).


                                                     3
                                              No.   2014AP2981-CR.ssa


$250 surcharge.5    Following the reasoning of Nickel, the DNA

surcharge (statutorily mandated as part of Scruggs' sentence)

constitutes punishment for purposes of the ex post facto clause.

     ¶64   I could end here and conclude that the mandatory DNA

surcharge statute is punishment and its retroactive application

runs afoul of the prohibition against ex post facto laws in the

federal and state constitutions.6

     ¶65   Nevertheless, I continue my ex post facto analysis,

focusing on whether the mandatory DNA surcharge statute has a

punitive effect.7


     5
       The majority opinion suggests that a cross-reference to
the DNA surcharge in Wis. Stat. § 814.76(5), which lists various
surcharges in criminal actions, negates any inferences that
could be drawn from the placement of the DNA surcharge in the
criminal statutes. I disagree.    In any event § 814.76(5) does
not negate the fact that the DNA surcharge is, unlike other
surcharges, part of the sentence.
     6
       See  Article   I,  Section   10  of   the    United States
Constitution and Article I, Section 12 of           the Wisconsin
Constitution, prohibiting ex post facto laws.

     "The animating principle underlying the ex post facto
clauses is the concept of fair warning." State ex rel Singh v.
Kemper, 2016 WI 67, ¶39, 371 Wis. 2d 127, 883 N.W.2d 86.     See
also Breck P. McAllister, Ex Post Facto Laws in the Supreme
Court of the United States, 15 Cal. L. Rev. 269, 287 (1927) ("At
the root of the mischief of ex post facto laws is their
unfairness. The individual is entitled to a chance to know what
the law is before he acts. The law must be accessible. It must
not, like Caligula's, be written in small characters and hung
upon high pillars.").
     7
       I conclude that a punitive legislative intent can be
shown, but it is easier to demonstrate that the mandatory DNA
surcharge statute's effect is more burdensome punishment than
the discretionary statute. Similar arguments support both
punitive intent and punitive effect.

                                                       (continued)
                                4
                                                           No.   2014AP2981-CR.ssa


     ¶66   In    an   ex    post      facto   analysis,    the    text    of   the

challenged statute must be scrutinized.               The proper approach is

to determine whether the mandatory DNA surcharge statute is an

unconstitutional ex post facto violation on its face.8

     ¶67   The   text      of   the   statutory     mandatory    DNA     surcharge

demonstrates that the DNA surcharge is punitive in effect and

not merely a reasonable civil charge to fund the estimated costs

of state DNA programs:


     Compare People v. Stead, 845 P.2d 1156, 1160 (Colo. 1993)
(resting its conclusion that a drug offender surcharge had a
punitive intent in part on the ground that "[t]he surcharge at
issue is part of Colorado's criminal code" and in part on "[t]he
amount of the fine imposed is correlated to the degree of felony
committed.") with In re DNA Ex Post Facto Issues, 561 F.3d 294,
299-300 (4th Cir. 2009) (resting its conclusion that a $250 DNA
surcharge applied per defendant did not have a punitive intent
because the surcharge's express purpose was "not punitive," it
was not codified in statutory chapter addressing "crime and
punishment," it offset DNA expenses, and it was "relatively
small [in] size.").
     8
       See, e.g., Hudson v. United States, 522 U.S. 93, 100-01
(1997) (the seven Mendoza-Martinez factors "must be considered
in relation to the statute on its face."); Weaver v. Graham, 450
U.S. 24, 29, 34 (1981) ("the inquiry [whether the criminal
statute ameliorates or worsens conditions imposed by its
predecessor] looks to the challenged provision, and not to any
special circumstances that may mitigate its effect on the
particular individual"); Lindsey v. Washington, 301 U.S. 397,
401 (1937) ("[T]he ex post facto clause looks to the standard of
punishment prescribed by a statute, rather than to the sentence
actually imposed. . . . It is for this reason that an increase
in the possible penalty is ex post facto regardless of the
length of the sentence actually imposed, since the measure of
punishment prescribed by the later statute is more severe than
that of the earlier.") (citations omitted).

     See also 6 Wayne R. LaFave                et   al.,   Criminal      Procedure
§ 25.1(c) at 765-66 (4th ed. 2015).


                                         5
                                              No.   2014AP2981-CR.ssa


        • The DNA surcharge is imposed and collected as part of

          the sentence in every criminal conviction, regardless

          of whether a DNA sample is collected or analyzed.

        • The DNA surcharge is imposed and collected as part of

          the sentence in every criminal conviction on the basis

          of the number of convictions, regardless of whether a

          DNA sample is collected or analyzed.9

        • The DNA surcharge is imposed and collected as part of

          the sentence in every criminal conviction, regardless

          of whether the defendant has previously furnished a

          DNA sample.

    ¶68   The most significant factor in a court's determination

that a statute's effects are not punitive is that the statute




    9
       Two legislative decisions suggest a punitive intent: (1)
tying the amount of the surcharge to the number of convictions
(regardless of whether the defendant supplied only one DNA
sample or several and regardless of whether the State analyzed
one DNA sample or numerous samples); and (2) imposing a lesser
DNA surcharge for misdemeanors than felonies.      Cf. State v.
Radaj, 2015 WI App 50, ¶21, 363 Wis. 2d 633, 866 N.W.2d 758
("Wisconsin's     DNA    surcharge     increases    with    each
conviction . . . . [T]he legislative decision to tie the amount
of the surcharge to the number of convictions, something
seemingly unrelated to the cost of the DNA-analysis-related
activities that the surcharge funds, casts doubt on legislative
intent."); State v. Elward, 2015 WI App 51, ¶7, 363 Wis. 2d 628,
866 N.W.2d 756 ("When the circuit court sentenced Elward, the
law required the surcharge, but did not permit the State to
actually collect a DNA sample. 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. . . . [T]he surcharge . . . violated the Constitution's
ex post facto clause.") (citation omitted).


                                6
                                                            No.   2014AP2981-CR.ssa


has a rational connection to a non-punitive purpose.10                      I shall

therefore examine whether a rational connection exists between

the terms of the statutory mandatory DNA surcharge and the non-

punitive purpose of the statute to fund state DNA programs.                     See

majority op., ¶¶45-48.

      ¶69   Although    the    State   and   the    majority      opinion    assert

that a rational connection exists, their analyses fail.                        This

analysis involves the factors set forth in Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 169 (1963), especially the sixth and

seventh factors that          "must be considered in relation to the

statute on its face."           Hudson v. United States, 522 U.S. 93,

100-01 (1997).11

      ¶70   The   sixth    Mendoza-Martinez        factor   addresses       whether

the   surcharge    is     rationally   connected      to    some    non-punitive

purpose.    The seventh Mendoza-Martinez factor addresses whether

the surcharge "appears excessive in relation to the non-punitive

purpose" of the statute.        See majority op., ¶¶44-45.

      ¶71   The sixth and seventh Mendoza-Martinez factors, taken
together, require courts to ask a two-part question:                  Is there a

rational connection between the surcharge and the non-punitive

purpose,    and   is    the   amount   of    the    surcharge      excessive     in

      10
       "The Act's rational connection to a nonpunitive purpose
is a '[m]ost significant' factor in our determination that the
statute's effects are not punitive." Smith v. Doe, 538 U.S. 84,
102 (2003) (quoting United States v. Ursery, 518 U.S. 267, 290
(1996)).
      11
       See also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169
(1963) ("[T]hese factors must be considered in relation to the
statute on its face.").


                                       7
                                                                        No.   2014AP2981-CR.ssa


relation to the non-punitive activities the surcharge funds?12

"If there is no rational connection and the fee is excessive in

relation to the activities it is intended to fund, then the fee

in effect serves as an additional criminal fine, that is, the

fee is punitive."            Radaj, 363 Wis. 2d 633, ¶25.

    ¶72        Looking       to   the    sixth          and    seventh     Mendoza-Martinez

factors,       it     is     evident     that          no    rational    and    proportional

connection          exists    between        the       mandatory,       per-conviction     DNA

surcharge and its professed non-punitive purpose to fund the

State's DNA program.

    ¶73        Radaj illustrates that there is no rational connection

between       the    per-conviction,          mandatory         DNA     surcharge    and   the

funding of the State's DNA program.                          Radaj was convicted of four

felonies committed prior to the effective date of the statutory

mandatory DNA surcharge.                     Rather         than use its discretion to

impose    a    DNA     surcharge        if    necessary,         the    circuit    court   was

required by statute to order Radaj to pay the $250 surcharge for

each felony, totaling $1,000.                      It could have been worse——Radaj
was initially charged with 21 misdemeanors in addition to the

four felonies; if Radaj had been convicted and sentenced for all

25 crimes, Radaj would have been ordered to pay $4,200 as a DNA

surcharge.



    12
       Specifically,    we   must  consider    "whether,   under
Wisconsin's statutory scheme, there is some rational connection
between calculating the DNA surcharge on a per-conviction basis
and the cost of the DNA-analysis-related activities that the
surcharge is meant to cover." Radaj, 363 Wis. 2d 633, ¶29.


                                                   8
                                                                             No.     2014AP2981-CR.ssa


      ¶74   The       court        of   appeals         upheld      Radaj's        ex     post    facto

challenge       to     the       statute       and       the       accompanying           surcharges.

Characterizing the multiple surcharges as punishment, the court

of    appeals        concluded          that     the       sentence          imposed       was       more

burdensome on Radaj than the punishment that would have been

imposed when Radaj committed the crimes (a single, permissive

surcharge).

      ¶75   After          the    majority's            decision        in   the     instant      case,

Radaj, who was convicted of multiple crimes may not have to pay

any DNA surcharge at all.                  Yet Scruggs, who was convicted of one

crime, must pay a $250 DNA surcharge.

      ¶76   Is       there       any     reason          to    treat         Radaj      and     Scruggs

differently?          Both committed crimes before the effective date of

the statutory mandatory DNA surcharge.                                  Radaj committed more

crimes than Scruggs, yet his punishment (the DNA surcharge) may

be less than hers.               Does their different treatment run afoul of

due   process        and    equal       protection,           as    well      as   ex     post    facto

protections of the law?
      ¶77   I    conclude           that,      on       its     face,        the     mandatory       DNA

surcharge statute does not bear a rational connection to funding

the State's DNA program.                   The law calculates the DNA surcharge

regardless       of       whether       DNA    was        collected          or      analyzed,       and

calculates it on a per-conviction and felony/misdemeanor basis

regardless       of        whether         DNA          was     collected            or       analyzed.

Accordingly,         the     DNA    surcharge           bears      no    relationship           to   the

actual   cost        of    the     DNA-analysis-related                  activities           that   the
surcharge is apparently intended to cover.

                                                    9
                                                                           No.    2014AP2981-CR.ssa


       ¶78      However rational a connection may be drawn between a

statute imposing a single mandatory $250 DNA surcharge for a DNA

sample actually collected and analyzed and funding the State's

DNA programs, such a statute is not the statute challenged in

this court on ex post facto grounds.

       ¶79      The DNA surcharge challenged in the instant case is

imposed regardless of whether a DNA sample of the defendant is

collected            or      analyzed;           is        calculated          differently         for

misdemeanors           and      felonies      (yet         the    cost   of    analysis      of    DNA

samples in both types of crimes is the same); and is based on

the    number          of    convictions           in      a     case.        Consequently,        the

surcharge imposed by the statute challenged is not connected to—

—and   is       excessive         in   relation            to——the   regulatory        purpose      of

funding state DNA programs.

       ¶80      As     in       Radaj,     the      remedy        for    the     ex   post     facto

violation in the instant case is to vacate the surcharge, and to

remand the cause to the circuit court to consider whether to

impose a discretionary surcharge under the statute applicable at
the time the crime was committed.

       ¶81      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



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238 collateral consequences.13           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.14

     ¶82    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.    See Wis. Stat. § 13.92(2)(j).

     ¶83    For the reasons set forth, I dissent.




     13
       See ABA Criminal Justice Section, National Inventory of
the       Collateral      Consequences       of       Conviction,
https://niccc.csgjusticecenter.org/search/?jurisdiction=50 (last
visited Feb. 9, 2017).
     14
       See Alicia Bannon, Mitali Nagrecha, & Rebekah Diller,
Brennan Center for Justice at New York University School of Law,
Criminal   Justice   Debt:   A   Barrier   to   Reentry   (2010),
http://www.brennancenter.org/sites/default/files/legacy/Fees%20a
nd%20Fines%20FINAL.pdf.

     This report discusses the hardships on criminal defendants
imposed by "'user fees,' financial obligations imposed not for
any traditional justice purpose . . . but rather to fund tight
state budgets."   Id. at 1.   User fees, "while often small in
isolation," are so numerous in many jurisdictions (and becoming
more numerous) that criminal defendants end up with extensive
debt.   This criminal justice debt tosses offenders into "an
endless cycle of debt."   Id.  This debt creates a "significant
barrier for individuals seeking to rebuild their lives after a
criminal conviction."    Id. at 2.    The report addresses the
concern that criminal justice debt leads to recidivism. Id. at
5.


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