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Divided state Supreme Court upholds DNA fee (UPDATE)

The Wisconsin Supreme Court has found that a law requiring felons to pay a surcharge for DNA testing was properly applied in the case of a Racine woman.

Thursday’s 6-1 decision stems from the case of Tabitha Scruggs, who was charged with aiding in a burglary in 2013. After she pleaded no contest, she was sentenced in 2014 and a charged a $250 DNA testing surcharge.

The crime took place before the effective date of a new statute requiring criminals to pay the surcharge for every one of their felony convictions. The old law had called for the same surcharge but had allowed judges to decide whether it should be imposed.

Scruggs later challenged the surcharge, alleging it had been applied retroactively as a punishment and was therefore unconstitutional. She argued that the old version of the law should have applied in her case.

In their decision on Thursday, the majority of the Supreme Court justices affirmed decisions previously handed down by judges on the state Court of Appeals and by Racine County Circuit Court Judge Allan Torhorst, all of whom had rejected Scruggs’ arguments.

According to the Supreme Court’s majority decision, written by Justice Ann Walsh Bradley, Scruggs had failed to meet her burden to show beyond a reasonable doubt that the new statute was unconstitutional. More specifically, the justices found that Scruggs had failed to show that the mandatory DNA surcharge was either intended to punish her or, even if not meant to, had the effect of punishing her.

The court reasoned that because the language of the statutes at issue uses the term “surcharge” instead of “fine,” that the goal was not to punish. Surcharges, the justices noted, are usually used to offset expenses incurred by the state.

The majority of the justices also noted on Thursday that the new DNA surcharge statute came as part of the state Legislature’s larger plan to expand the state’s DNA database and lighten the state Department of Justice’s responsibilities related to collecting, analyzing and maintaining DNA samples.

However, the majority of the justices mentioned in a footnote that although they had affirmed Torhorst’s denial of the motion, they nonetheless believe Torhorst was incorrect in reasoning that the statute was in effect when Scruggs had committed the crime.

In denying Scrugg’s post-conviction motion, Torhorst had noted that the new surcharge requirement was published on July 1, 2013. That meant, he argued , that it was already in place when Scruggs committed her crime. In fact, though, the new surcharge requirement did not take effect for another six months.

The court on Thursday also declined to overrule a related decision in the case of State v. Radaj. This appellate-court ruling, from 2015, held that it would be unconstitutional to apply the new, mandatory DNA surcharge law before its effective date to a defendant who was charged with more than one felony.

In dissenting from the majority on Thursday, Justice Shirley Abrahamson centered much of her argument on the Radaj case. She noted the majority’s decision will force defendants like Scruggs to pay the surcharges, but possibly not defendants charged with many crimes, like Radaj.

“Is there any reason to treat Radaj and Scruggs differently? …. 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?”

About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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