The Wisconsin Supreme Court will hear oral arguments next month in a case questioning whether a law requiring felons to pay a surcharge for DNA testing should have been applied retroactively in a Racine woman’s burglary conviction.
On Dec. 30, 2013, Tabitha Scruggs drove a male accomplice to a home in Racine, where he broke two windows and helped steal a TV, PlayStation and video game. Scruggs was later charged, pleaded no contest and was sentenced.
The crimes took place two days before the effective date of a new statute requiring criminals to pay $250 for every felony they are convicted of. The charges are meant to cover the cost of DNA testing.
The old law had still called for a $250 surcharge but had let judges decide if they wanted to impose it. What’s more, there had been no requirement that $250 be collected for every felony conviction.
Scruggs argued that the old version of the law should have applied in her case because her crime had occurred before the effective date of the required surcharges. The state Legislature had actually approved the mandatory DNA charges in the middle of 2013 by modifying Wis. Stat. 973.06, but the new rule did not take effect until the start of the next year.
When Scruggs was sentenced in Racine County Circuit Court, Judge Allan Torhorst never mentioned that she would have to pay the surcharge. Learning of the fee, Scruggs used a post-conviction motion to contend the new surcharge had been applied retroactively and was therefore unconstitutional.
She pointed out that laws enacted by the Legislature are generally presumed to have only a prospective application. The argument failed to sway Torhorst, who denied Scruggs’ post-conviction motion.
Torhorst contended that the new surcharge requirement, because it had been published on July 1, 2013, was already in place when Scruggs committed her crime, even though it did not actually take effect for another six months.
Instances of retroactive application are only one of the reasons critics have for finding fault with the required surcharge. Some also note that $250 can be quite expensive for some defendants.
Julius Kim, a Brookfield criminal-defense lawyer, is quick to point out that the DNA surcharge is just one in a series of costs and other assessments defendants can be made to pay. A person accused of a crime can easily rack up $1,000 or more in miscellaneous charges, he said.
“I think once the Legislature decided that DNA should be collected after certain arrests, not just convictions, they realized that someone had to pay for the costs associated with expanding and maintaining the DNA database,” Kim said.
Kim said lawmakers no doubt found it relatively easy to saddle defendants with additional fees and surcharges because the public generally has little sympathy for people accused of crime.
Scruggs, for her part, has seen no success so far in trying to get judges to see her side.
In her appeal of the Racine Circuit Court’s decision, she continued to argue that the DNA surcharge had been applied retroactively in her case and was therefore unconstitutional.
She went on to contend that the Legislature had intended the surcharge to be a new criminal penalty rather than a civil penalty. Because of federal precedents that apply in Wisconsin, new laws that make existing criminal penalties more burdensome cannot be applied retroactively. Thus, if Scruggs could prove that Wisconsin’s surcharge requirement was meant to be punitive, she could argue the law had been inappropriately applied ex post facto in her case.
Scruggs went on to argue that even if the new law had been intended to impose a civil penalty, it was punitive in its effect and therefore akin to a criminal penalty. She pointed out, for instance, that the DNA surcharge appears in the state’s criminal statutes.
Whether a statute is punitive or not can be decided using the courts’ so-called intents-effects test. This has the courts first examine whether the legislative intent of a particular law was to punish.
If the court concludes it was, then the inquiry ends. But if the court finds the legislative intent was to create a civil-regulatory scheme, the court must go on to decide whether the law is punitive enough that it in effect becomes a criminal penalty.
In counterarguments, the state conceded that the circuit court may have erred in ruling that the DNA surcharge was in effect when Scruggs had committed her crime. Still, state attorneys contended that the decision to have Scruggs pay the DNA surcharge had not violated the ex post facto provisions of the state and federal constitutions. The surcharge, the state argued, was not meant to be punitive.
A three-judge panel of the District 2 Court of Appeals agreed, concluding last year that the surcharge was aimed purely at offsetting the cost of maintaining and operating the state’s DNA data bank. A single $250 surcharge, the court reasoned, was not burdensome enough to turn an administrative cost into a criminal penalty.
The court noted that the Legislature, when adopting the mandatory DNA surcharge in 2013, had left the amount to be collected unchanged even as it had called for $250 to be charged for every felony conviction. That avoidance of any increase, the court reasoned, suggested there had been no punitive intent.
Scruggs appealed, and the state Supreme Court agreed in March to grant a review. Now, as Scruggs prepares for her appearance before the state’s high court, she is continuing to argue that the amended law was unconstitutionally applied ex post facto.
Kim said he thinks Scruggs should prevail. He said he agrees that the plain text of the statue shows that lawmakers had intended to punish certain offenders more than others.
Scruggs notes that the $250 DNA surcharge for felons, as well as a separate $200 DNA surcharge for misdemeanor offenses, has no relation to the actual costs generated by a defendant’s case. Rather, it’s a flat fee imposed for every count a defendant has been convicted of.
Even though Scruggs’ challenge has centered on the $250 surcharges, victory in court won’t necessarily mean she won’t have to pay them. Kim noted that even if the justices found in favor of Scruggs, they would remand the case to the trial court.
That court would then have to apply the pre-2014 law, meaning it could choose to impose the charge anyway.
“In the end this could be much ado about nothing (at least for Scruggs),” he said.
The justices are set to hear oral arguments in Scruggs’ case at 9:45 a.m. Oct. 13 in the Supreme Court Hearing Room at the state Capitol. Scruggs is represented by Dustin Haskell, an assistant state public defender. The state is represented by Jeffrey Kassel, an assistant attorney general.