Lawsuit: Wisconsin DNA surcharge unconstitutional

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — The Wisconsin Department of Justice and state court officials have unconstitutionally applied a surcharge to maintain the state’s DNA database, three convicts contend in a federal lawsuit filed on Wednesday.

The lawsuit revolves around a law passed in 2013 requiring anyone convicted of a misdemeanor or a felony to submit DNA and pay a $200 surcharge. Convicts sentenced or placed on probation on or after Jan. 1, 2014, had to pay the surcharge but didn’t have to begin submitting DNA until the spring of 2015, a 15-month lag. The delay was set up to allow the DOJ to accumulate money to pay for the analysis of the additional submissions before they began to come in.

That system allowed the DOJ to take in millions of dollars while doing nothing and amounts to an ex post facto constitutional violation, according to the lawsuit. The surcharge as applied to people who committed crimes before Jan. 1, 2014, but were sentenced after that date, amounts to a punitive fine rather than a fee because it had nothing to do with performing the DNA analysis, the lawsuit argues.

A state appellate court ruled in 2015 that applying the surcharge to defendants who committed offenses before Jan. 1, 2014, was unconstitutional, but Attorney General Brad Schimel has refused to return the money to the people who paid it, according to the lawsuit.

“The people of the State of Wisconsin need to know that their Department of Justice built its DNA database on a rotten foundation,” said Ben Elson, an attorney for the plaintiffs.

Johnny Koremenos, a spokesman for the DOJ, said on Wednesday that the agency hadn’t been served with the lawsuit yet. He had no further comment.

The lawsuit was brought by Jacob Fish, who was convicted in 2014 of the misdemeanor possession of drug paraphernalia in June 2013; Tomick Copeland, who was convicted in 2014 of misdemeanor battery in September 2013; and Taylor Claybrook, who was convicted in 2014 of committing misdemeanor theft in November 2013. Both Fish and Copeland paid the surcharge. Claybrook spent two days in jail for failing to pay it, the lawsuit alleges.

The lawsuit seeks class-action status on behalf of more than 10,000 similarly situated people, as well as unspecified damages.