State v. Tabitha A. Scruggs, 2017 WI 15

Background

Tabitha Scruggs committed burglary on Dec. 30, 2013; pleaded no contest April 1, 2014; sentenced June 9, 2014.
At the time of the offense the DNA analysis surcharge (Wis. Stat. § 973.046) was discretionary ($250 for a felony).
On Jan. 1, 2014 the statute was amended to make the surcharge mandatory for sentences imposed on or after that date ($250 per felony conviction).
Scruggs was ordered to submit DNA and pay the $250 mandatory surcharge; she moved postconviction to vacate it as an ex post facto violation.
The circuit court denied relief; the court of appeals affirmed, holding Scruggs failed to prove the surcharge punitive; the Wisconsin Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether making a previously discretionary $250 DNA surcharge mandatory for sentences imposed after amendment violates the Ex Post Facto Clauses when applied to offenses committed before amendment	Scruggs: mandatory imposition is more burdensome than discretionary regime and thus punitive when applied retroactively	State: statute is civil cost-recovery (a surcharge), not punishment; retroactive application is permissible if nonpunitive	Held: Scruggs failed to prove beyond a reasonable doubt that the mandatory $250 surcharge is punitive in intent or effect; no ex post facto violation for single-felony surcharge
Whether legislature intended the amendment to be punitive	Scruggs: placement in sentencing statutes and per-conviction structure shows punitive intent	State: statutory label “surcharge,” cross-reference to civil surcharge statute, funding purpose and legislative history show cost-recovery intent	Held: legislative intent is nonpunitive — language, placement in §814.76(5), funding destination under §165.77, and legislative history support civil purpose
Whether the surcharge is punitive in effect (Kennedy/Mendoza‑Martinez factors)	Scruggs: amount, per‑conviction calculation, and application regardless of whether DNA analyzed can show excessive, punitive effect	State: surcharge imposes no restraint, lacks scienter, is modest and rationally related to DNA program costs	Held: on Mendoza‑Martinez factors the surcharge is nonpunitive in effect for a single $250 felony surcharge; Scruggs did not meet the "clearest proof" standard
Scope of Radaj and multiple‑conviction cases	Scruggs: cites Radaj (multiple surcharges) to argue similar punitive effect	State: distinguishes Radaj (multiple per‑conviction surcharges amounted to punitive effect)	Held: Radaj remains distinguishable — this decision concerns a single $250 felony surcharge and does not overrule Radaj

Key Cases Cited

State v. Thiel, 188 Wis. 2d 695 (ex post facto principle: law that makes punishment more burdensome after commission is prohibited)
Collins v. Youngblood, 491 U.S. 37 (ex post facto analysis principle)
Hudson v. United States, 522 U.S. 93 (intent-effects test for punitive character)
Smith v. Doe, 538 U.S. 84 (deference to legislative civil label; clearest proof required to show civil label masks punishment)
Kennedy v. Mendoza‑Martinez, 372 U.S. 144 (seven-factor test for punitive effect)
State v. Radaj, 363 Wis. 2d 633 (distinguishable; multiple surcharges found punitive in effect)
Mueller v. Raemisch, 740 F.3d 1128 (distinction between fines and fees/surcharges; relation to cost-recovery)
In re DNA Ex Post Facto Issues, 561 F.3d 294 (Fourth Circuit: $250 DNA surcharge nonpunitive where rationally related to costs)