High court blesses unlimited DNA test ‘surcharges’

Cost is deemed not to be punitive or excessive

It is not unlawful for Wisconsin to charge criminals hundreds or even thousands of dollars each to maintain the state’s DNA database, even if their offenses occurred before an expanded DNA program took effect in 2014, the Supreme Court ruled Wednesday.

Two Court of Appeals decisions had found the practice violated the U.S. Constitution’s prohibition on “ex-post facto laws,” but the high court said the mandatory “DNA surcharge” is not imposed as punishment and passes constitutional muster.

Jamal Williams was convicted of attempted armed robbery as party to a crime for a fatal holdup in 2013. He challenged his sentence and the fact he was ordered to pay the surcharge even though his DNA was already in the database from a prior conviction, and his latest offense happened when a DNA surcharge was only mandatory for certain sex crime convictions.

The $200 per misdemeanor, and $250 per felony conviction is “not to cover the DNA-analysis-related costs incurred for the specific conviction for which it is being imposed,” Justice Rebecca Bradley wrote for the majority.

“Rather, the non-punitive purpose is to fund the costs associated with the DNA databank by charging those necessitating its existence — convicted criminals. That means a defendant pays a surcharge for every conviction irrespective of whether his DNA profile already exists in the databank and whether he submits only one DNA sample. This is what the law says.”

The majority found the surcharge has neither a punitive intent nor effect.

“We held in (another case) the $250 surcharge was relatively small and therefore did not promote the traditional punitive aims of retribution and deterrence,” the majority opinion states.

The Legislature created a “user fee” assessed against those responsible for necessitating the databank. The more crimes committed, the more times the user pays the fee. The law does not require the Legislature to set a surcharge with precision; the surcharge imposed must bear only “an approximate relation to the cost it is meant to offset.”

Williams argued the fee amounts were excessive, citing a $2.3 million surplus last year reported by the Legislative Fiscal Bureau. For defendants convicted of multiple felony counts in the same case, the $250 could multiply into the thousands of dollars.

Justice Shirley Abrahamson agreed with the majority’s conclusion in the particular case on appeal, but wrote a separate opinion stating she disagrees “with the majority’s suggestion that there is never a circumstance under which the mandatory DNA surcharge would be considered punishment.”

Chief Justice Patience Roggensack and Justice Ann Bradley did not participate in the case.