State v. Tabitha A. Scruggs

2017 WI 15

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2981-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Tabitha A. Scruggs,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: February 23, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 13, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Allan B. Torhorst

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. dissent (Opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there was a brief
and oral argument by Dustin C. Haskell, assistant state public
defender.

For the plaintiff-respondent the cause was argued by
Jeffrey J. Kassel, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general.
 2017 WI 15
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2981-CR
(L.C. No. 2014CF7)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin

Plaintiff-Respondent,
FILED
v. FEB 23,2017

Tabitha A. Scruggs, Diane M. Fremgen
Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANN WALSH BRADLEY, J. Petitioner, Tabitha Scruggs

("Scruggs"), seeks review of a published court of appeals

decision denying her motion for postconviction relief.1 The
court of appeals determined that Scruggs failed to demonstrate

beyond a reasonable doubt that imposing a now mandatory $250 DNA

surcharge for a single felony conviction constitutes a

punishment, violating the prohibition against ex post facto laws

set forth in the United States and Wisconsin Constitutions.

1
State v. Scruggs, 2015 WI App 88, 365 Wis. 2d 568, 872
N.W.2d 146 (affirming judgment and order entered by the circuit
court for Racine County, Allan B. Torhorst, J., presiding).
 No. 2014AP2981-CR

¶2 Specifically, Scruggs contends that the imposition of

this single $250 DNA surcharge is punitive for ex post facto

purposes because it was discretionary when she committed the

felony offense but mandatory when she was sentenced. She

asserts that the statutory amendment making mandatory the

imposition of the $250 DNA surcharge at sentencing constitutes

an unconstitutional ex post facto law because it retroactively

imposes punishment on those who committed a crime before the

amendment's January 1, 2014 effective date.

¶3 Like the court of appeals, we conclude that Scruggs

has not met her burden of establishing beyond a reasonable doubt

that the amended statute is unconstitutional. She has failed to

show that the mandatory imposition of this DNA surcharge, which

was discretionary at the time she committed the single felony

offense, is punitive in either intent or effect and thus

violative of the ex post facto prohibition.

¶4 Accordingly, we affirm the decision of the court of

appeals, denying Scruggs’ postconviction motion to vacate the
$250 DNA surcharge.

I

¶5 The underlying facts in this case are not in dispute.

On December 30, 2013, Scruggs was charged with one count of

burglary as a party to a crime, contrary to Wis. Stat.

§§ 943.10(1m)(a) & 939.05(1) (2011-12).2 She pleaded no contest

2
Wis. Stat. § 943.10(1m)(a) provides:

(continued)
2
 No. 2014AP2981-CR

to the charged offense on April 1, 2014, and was sentenced on

June 9, 2014.

¶6 The circuit court sentenced Scruggs to 18 months of

initial confinement and 18 months of extended supervision.

Scruggs' sentence was stayed and she was placed on probation for

three years. The judgment of conviction provided that Scruggs

submit to a DNA sample and pay a $250 DNA analysis surcharge.

¶7 At the time Scruggs committed the offense on December

30, 2013, Wis. Stat. § 973.046 (2011-12) was in effect. It

provided that the decision of whether to impose a DNA surcharge

was within the circuit court's discretion:

(1g) Except as provided in sub. (1r), if a court
imposes a sentence or places a person on probation for
a felony conviction, the court may impose a
deoxyribonucleic acid analysis surcharge of $250.
¶8 On January 1, 2014, Wis. Stat. § 973.046(1r)(a) (2013-

14) ("2014 Amendment") took effect pursuant to 2013 Wis. Act

(1m) Whoever intentionally enters any of the following
places without the consent of the person in lawful
possession and with intent to steal or commit a felony in
such place is guilty of a Class F Felony:

(a) Any building or dwelling.

Wis. Stat. § 939.05(1) provides:

Whoever is concerned in the commission of a crime is a
principal and may be charged with and convicted of the
commission of the crime although the person did not
directly commit it and although the person who directly
committed it has not been convicted or has been convicted
of some other degree of the crime or of some other crime
based on the same act.

3
 No. 2014AP2981-CR

20. The Act specified that the mandatory DNA surcharge would

apply to sentences imposed on or after January 1, 2014,

regardless of when the underlying offense occurred. 2013 Wis.

Act 20, §§ 9326, 9426. Thus, when Scruggs was sentenced on June

9, 2014, the amended statute made the imposition of a DNA

surcharge mandatory:

(1r) If a court imposes a sentence or places a person
on probation, the court shall impose a
deoxyribonucleic acid analysis surcharge, calculated
as follows:

(a) For each conviction for a felony, $250.

(b) For each conviction for a misdemeanor, $200.

Wis. Stat. § 973.046(1r) (2013-14).
¶9 Scruggs filed a postconviction motion seeking to

vacate the $250 DNA surcharge. She argued that imposing this

mandatory DNA surcharge violated the Ex Post Facto Clauses of

the United States and Wisconsin Constitutions because imposition

of the DNA surcharge was discretionary at the time she committed

the felony offense. According to Scruggs, the statutory change

from a discretionary DNA surcharge to a mandatory DNA surcharge

makes the 2014 Amendment punitive for a defendant sentenced for

a single felony offense after the effective date of the 2014

Amendment for an offense committed before it.

¶10 Scruggs argued that the circuit court instead should

have applied Wis. Stat. § 973.046 (2011-12) as it existed at the

time she committed the offense and exercised its discretion in

determining whether to impose a $250 DNA surcharge. The circuit

4
 No. 2014AP2981-CR

court concluded that it was required to impose the mandatory

$250 DNA surcharge and denied Scruggs' postconviction motion.3

¶11 The court of appeals affirmed the circuit court,

albeit with a different rationale. State v. Scruggs, 2015 WI

App 88, ¶19, 365 Wis. 2d 568, 872 N.W.2d 146. It determined

that Scruggs "has failed to demonstrate beyond a reasonable

doubt that the $250 DNA surcharge that the circuit court imposed

on her for a single felony conviction constitutes a punishment

and, thus, [did not] violate[] the prohibitions against ex post

facto laws in the U[nited] S[tates] and Wisconsin

Constitutions." Id.

II

¶12 Whether a statute violates the Ex Post Facto Clauses

of the Wisconsin and United States Constitutions is a question

of law that this court reviews independently of the

determinations rendered by the circuit court and the court of

appeals. State v. Haines, 2003 WI 39, ¶7, 261 Wis. 2d 139, 661

N.W.2d 72. There is a strong presumption that legislative
enactments are constitutional. Bostco LLC v. Milwaukee Metro.

Sewerage Dist., 2013 WI 78, ¶76, 350 Wis. 2d 554, 835

3
The circuit court incorrectly reasoned that the 2014
Amendment was in effect when Scruggs committed the offense
because the amended statute had been published. The State
concedes that the circuit court erred in concluding that the
2014 Amendment was in effect when Scruggs committed the offense.
However, the State continues to maintain that the retroactive
application of the 2014 Amendment is not an ex post facto
violation because it is not punitive.

5
 No. 2014AP2981-CR

N.W.2d 160. Scruggs has the burden of establishing beyond a

reasonable doubt that the challenged legislation is

unconstitutional. Chappy v. Labor & Indus. Review Comm'n, Dep't

of Indus., Labor & Human Relations, 136 Wis. 2d 172, 184-85, 401

N.W.2d 568 (1987).

¶13 A party challenging the constitutionality of a statute

"bears a heavy burden." State v. Smith, 2010 WI 16, ¶8, 323

Wis. 2d 377, 780 N.W.2d 90 (citing State v. Cole, 2003 WI 112,

¶11, 264 Wis.2d 520, 665 N.W.2d 328). "It is insufficient for

the party challenging the statute to merely establish either

that the statute's constitutionality is doubtful or that the

statute is probably unconstitutional." Id. "Instead, the party

challenging a statute's constitutionality must 'prove that the

statute is unconstitutional beyond a reasonable doubt.'" Id.

(quoting Cole, 264 Wis. 2d 520, ¶11).

III

¶14 At the outset we observe the basic premise that a

statute "which makes more burdensome the punishment for a
crime[] after its commission" is prohibited by the Ex Post Facto

Clauses of the United States and Wisconsin Constitutions.4 State

4
Scruggs does not argue that she has greater protection
under the Ex Post Facto Clause of the Wisconsin Constitution
than she has under the United States Constitution. She
acknowledges that this court generally looks to United States
Supreme Court decisions construing the Ex Post Facto Clause of
the United States Constitution as a guide to construing the Ex
Post Facto Clause of the Wisconsin Constitution. See State v.
Thiel, 188 Wis. 2d 695, 699, 524 N.W.2d 641 (1994).

(continued)
6
 No. 2014AP2981-CR

v. Thiel, 188 Wis. 2d 695, 703, 524 N.W.2d 641 (citing Collins

v. Youngblood, 497 U.S. 37, 42 (1990). Scruggs contends that

the imposition of a $250 DNA surcharge is punitive because it

was discretionary when she committed the crime but mandatory

when she was sentenced. She asserts that the statutory

amendment making mandatory the imposition of a $250 DNA

surcharge at sentencing constitutes an unconstitutional ex post

facto law because it retroactively imposes punishment to those

who committed a crime before the amendment's January 1, 2014

effective date.

¶15 The State does not dispute Scruggs' contention that if

the DNA surcharge is punitive, amending the statute to make

mandatory what previously was discretionary is an ex post facto

violation with respect to defendants who committed their offense

before the effective date of the amendment. See Lindsey v.

Washington, 301 U.S. 397, 400 (1937) (concluding it is an ex

post facto violation to apply a new criminal penalty where

"[t]he effect of the new statute is to make mandatory what was
before only the maximum sentence.").

The Ex Post Facto Clause of the United States Constitution
is found in Article I, Sections 9 and 10. Section 9 provides:
"No bill of attainder or ex post facto Law shall be passed."
Section 10 provides: "No state shall . . . pass any . . . ex
post facto Law . . . ."

In the Wisconsin Constitution, the Ex Post Facto Clause is
found in Article 1, Section 12, which provides: "No . . . ex
post facto law . . . shall ever be passed . . . ."

7
 No. 2014AP2981-CR

¶16 In determining whether a statute is punitive for ex

post facto purposes, we apply the "intent-effects" test set

forth in Hudson v. United States, 522 U.S. 93 (1997). See In re

Commitment of Rachel, 2002 WI 81, ¶38, 254 Wis. 2d 215, 647

N.W.2d 762. If we determine that the legislative intent of the

2014 Amendment was to impose punishment, the law is considered

punitive and our inquiry ends there. See City of South

Milwaukee v. Kester, 2013 WI App 50, ¶22, 347 Wis. 2d 334, 830

N.W.2d 710. However, if we determine that the legislature's

intent was to impose a civil and nonpunitive regulatory scheme,

we must determine next whether the 2014 Amendment is so punitive

in form and effect as to "transfor[m] what was clearly intended

as a civil remedy into a criminal penalty." Rachel, 254

Wis. 2d 215, ¶33 (citing Hudson, 522 U.S. at 99).5

¶17 Determining whether the legislature intended the

statute to be punitive "is primarily a matter of statutory

construction . . . ." Id., ¶40. Statutory interpretation

begins by examining the plain language of the statute. State ex

5
The terms "form" and "effect" are used in relevant case
law applying the second part of the intents-effects test without
providing an analysis that distinguishes between the two terms.
See, e.g., In re commitment of Rachel, 2002 WI 81, ¶¶42-43, 254
Wis. 2d 215, 647 N.W.2d 762; Hudson v. United States, 522 U.S.
93, 104 (1997); United States v. Ursery, 518 U.S. 267, 290
(1996). Likewise, the parties do not argue or differentiate
between "form" and "effect." They discuss only the "effect,"
and do not analyze the "form" when discussing the second part of
the intents-effects test. Consequently, our analysis discusses
the "effects" of the surcharge imposed.

8
 No. 2014AP2981-CR

rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶45, 271

Wis. 2d 633, 681 N.W.2d 110 (citations omitted).

¶18 Accordingly, we begin our analysis of Scruggs' claim

by considering whether the legislature either expressly or

impliedly indicated a preference that the 2014 Amendment be

considered a civil remedy or a criminal penalty. See Rachel,

254 Wis. 2d 215, ¶32 (citing Hudson, 522 U.S. at 99).

"Statutory language is given its common, ordinary, and accepted

meaning, except that technical or specially-defined words or

phrases are given their technical or special definitional

meaning." Kalal, 271 Wis. 2d 633, ¶45 (citations omitted).

¶19 Sections 973.046(1r)(c)-(d) (2013-14) provide:

If a court imposes a sentence or places a person on
probation, the court shall impose a deoxyribonucleic
acid analysis surcharge, calculated as follows:

(c) For each conviction for a felony, $250.

(d) For each conviction for a misdemeanor, $200.
¶20 We give "great deference" when the legislature labels

a statute as a civil remedy. Rachel, 254 Wis. 2d 215, ¶42.

Only the "clearest proof" will convince this court that a

statute the legislature labeled as a civil remedy is in effect a

criminal penalty. Kester, 347 Wis. 2d 334, ¶22 (citation

omitted).

¶21 The language of the 2014 Amendment, which uses the

term "surcharge" rather than "fine," reveals that the

legislature intended the statute to be a civil remedy, rather
than a criminal penalty. As the Seventh Circuit explained in

9
 No. 2014AP2981-CR

Mueller v. Raemisch, a fine is a punishment for an unlawful act

that is a "substitute deterrent for prison time" and "a signal

of social disapproval of unlawful behavior." 740 F.3d 1128,

1133 (7th Cir. 2014). In contrast, a fee (or in this case a

"surcharge") is compensation for a service provided to, or

alternatively compensation for a cost incurred by, the person

charged the fee. See id.6

¶22 Scruggs contends that placement of the DNA surcharge

within the criminal sentencing statutes reflects a legislative

intent to punish. According to Scruggs, the surcharge is

situated squarely within the criminal sentencing statutes, which

address imposition of criminal penalties. In contrast, Scruggs

argues, court costs and other non-punitive charges are addressed

in Chapter 814.

¶23 Scruggs overlooks that the DNA surcharge is explicitly

set forth in Wis. Stat. § 814.76(5) (2013-14), which makes a

distinction between a fine imposed in a criminal action and a

surcharge imposed in that action. It provides:

Surcharges in criminal actions. In addition to any
fine imposed in a criminal action, a defendant shall
pay the following surcharges if applicable:

(5) The deoxyribonucleic acid analysis surcharge
under s. 973.046(1r).

6
We observe that court costs, fees, and surcharges are all
set forth in Chapter 814 of the Wisconsin Statutes. Although
Mueller uses the term "fee," a "surcharge" is similarly defined
as an "additional charge, tax, or cost." Random House
Unabridged Dictionary 1914 (2d ed. 1993).

10
 No. 2014AP2981-CR

Wis. Stat. § 814.76(5) (2013-14). Additionally, the United

States Supreme Court has determined that a forfeiture provision

may be a civil remedy even though the authorizing statute is

located in the criminal code. Smith v. Doe, 538 U.S. 84, 94-95

(2003) (citing United States v. One Assortment of 89 Firearms,

465 U.S. 354, 364-65 (1984)).

¶24 Although Scruggs is correct that statutory language is

interpreted in the context of the statutory scheme, considering

closely-related statutes, the placement of the DNA surcharge

within the criminal sentencing statutes is not the only

statutory context we consider. See Kalal, 271 Wis. 2d 633, ¶46.

As the court of appeals explained, the 2014 Amendment is part of

a larger statutory initiative to expand the state's DNA databank

and "to offset the increased burden on the Department of Justice

(DOJ) in collecting, analyzing, and maintaining the additional

DNA samples . . . ." Scruggs, 365 Wis. 2d 568, ¶11.

¶25 Thus, we also interpret the language used in the 2014

Amendment of 973.046(1r)(a) in relation to Wis. Stat.
§§ 973.046(3). In order to offset the increased burden on the

DOJ in collecting, analyzing, and maintaining the additional DNA

samples, the legislature imposed the mandatory surcharge on

felony convictions to be deposited initially with the secretary

of administration but to be used by the DOJ to offset the

increased costs.

¶26 Wisconsin Stat. § 973.046(3) (2013-14) states: "All

moneys collected from deoxyribonucleic acid analysis surcharges
shall be deposited by the secretary of administration . . . and
11
 No. 2014AP2981-CR

utilized under s. 165.77." Section 165.77 sets forth the

requirements that the DOJ provide for the analysis of the

collected samples and maintain a state DNA databank. See Wis.

Stat. § 165.77(2)(a)(1)&(3) (2013-14). When viewed in context,

the imposition of a now mandatory surcharge that "is

specifically dedicated to fund the collection and analysis of

DNA samples and the storage of DNA profiles——all regulatory

activities——evidences a nonpunitive cost-recovery intent."

Scruggs, 365 Wis. 2d 568, ¶12.

¶27 Consulting legislative history further informs our

interpretation. Kalal, 271 Wis. 2d 633, ¶51 (legislative

history may be consulted to confirm a plain-meaning

interpretation). The Legislative Fiscal Bureau memorandum

regarding the 2014 Amendment recognized that DNA databanks are

an important tool in criminal investigations and explained that

the mandatory DNA surcharge would provide funding for the

collection and analysis of DNA samples together with the

maintenance of the DNA databank.7 It further explained that
"deoxyribonucleic acid testing allows a more certain and rapid

identification of offenders as well as the exoneration of those

wrongfully suspected or accused . . . ." Id. at 8.

¶28 Nonetheless, Scruggs argues that the intent of the

2014 Amendment is punitive because the surcharge bears no

7
Legis. Fiscal Bureau, DNA Collection at Arrest and the DNA
Analysis Surcharge, Paper #410 to J. Comm. on Fin. 2-3, 8 (May
23, 2013).

12
 No. 2014AP2981-CR

relation to the DNA costs created by any particular defendant.

As the Seventh Circuit explained in Mueller, one basis for

reclassifying a surcharge as a fine "would be that it bore no

relation to the cost for which the fee was ostensibly intended

to compensate." 740 F.3d at 1133.

¶29 Scruggs has the burden of showing that the amount of

the surcharge imposed here demonstrates that the $250 surcharge

is punitive in intent. Yet, she presents no evidence that the

surcharge is meaningfully greater than the costs she caused the

State to incur to collect, analyze, and curate her DNA.

¶30 The amount of the DNA surcharge for a single felony

conviction suggests that the fee was not intended to be a

punishment. As discussed above, it is instead intended to

offset the costs associated with the collection and analysis of

samples together with the maintenance of the state's DNA

databank. See, e.g., In re DNA Ex Post Facto Issues, 561 F.3d

294, 300 (4th Cir. 2009) ("the relatively small size of the

fee . . . indicate[d] that it was not intended to have a
significant retributive or deterrent value..."). The $250 DNA

surcharge is consistent with the DNA fees charged in other

jurisdictions, which have been considered non-punitive. See,

e.g., People v. Higgins, 13 N.E.3d 169, ¶20 (Ill. App. Ct. 2014)

(citing People v. Guadarrama, 955 N.E.2d 615, 618 (Ill. App. Ct.

2011) ($250)); Commonwealth v. Derk, 895 A.2d 622, 625–30, 630

n.6 (Pa. Super. Ct. 2006) ($250); State v. Brewster, 218 P.3d

249, 251 (Wash. Ct. App. 2009) ($100).

13
 No. 2014AP2981-CR

¶31 Scruggs asserts next that tying the surcharge to the

number and type of conviction indicates that the legislature is

using the surcharge to impose a penalty on more serious

offenders. She reasons that if the surcharge were actually

intended to offset the costs of DNA testing there would be no

reason to impose a higher surcharge based on the number and type

of conviction when these factors do not affect the cost of

obtaining a DNA sample from a single defendant. Scruggs further

argues that a higher surcharge based on the number of

convictions indicates that the legislature had a punitive intent

in enacting the 2014 Amendment.

¶32 In State v. Radaj, the court of appeals considered a

challenge to the 2014 Amendment based upon a $1000 surcharge

imposed for four felony convictions. 2015 WI App 50, ¶1, 363

Wis. 2d 633, 866 N.W.2d 758. Unlike Scruggs, Radaj was

convicted of four felonies and assessed a $250 surcharge for

each conviction, which totaled $1000. Id., ¶¶3-5.

¶33 The Radaj court determined that the 2014 Amendment was
an ex post facto violation under the facts of that case because

the multiple surcharges were punitive in effect. Id., ¶35.

However, the court left for another day the issue Scruggs raises

in this case. It explained that "we do not weigh in on whether

the result might be different if Radaj had been convicted of a

single felony carrying with it a mandatory $250 surcharge,

rather than the prior discretionary $250 surcharge." Id., ¶36.

¶34 Radaj assumed without deciding that the legislative
intent behind the 2014 Amendment was nonpunitive. Id., ¶16.
14
 No. 2014AP2981-CR

However, Scruggs relies on a portion of the court's discussion

of intent, in which it reasoned that "the legislative decision

to tie the amount of the surcharge to the number of

convictions . . . casts doubt on legislative intent." Id., ¶21.

¶35 Scruggs' reliance on Radaj is misplaced.8 We assess

the merits of this challenge by considering the facts of this

particular case. As the court of appeals in this case

explained, "since this appeal involves only a single felony

8
At oral argument the State reiterated that it was not
asking this court to overrule Radaj and again emphasized the
distinctions between the two cases. It likewise stated that it
was not challenging the holding in State v. Elward, 2015 WI App
51, 363 Wis. 2d 628, 866 N.W.2d 756, which it deemed also
readily distinguishable.

In Elward, the court of appeals concluded that a mandatory
$250 surcharge was punitive and violated the ex post facto
clauses because a multi-phase rollout required circuit courts to
begin imposing the surcharge on January 1, 2014. Id., ¶7.
However, courts had to wait 15 months——until April 1, 2015——
before they could actually order misdemeanants to provide a
sample for DNA analysis. Id., ¶2 (citing 2013 Wis. Act 20,
§ 9426(1)(am) and (bm)). As a result, Elward never had to
submit to a test. Id., ¶7.

The State emphasized the roll out and the fact that the
defendant in Elward was never ordered to provide a sample, in
distinguishing this case:

Elward was distinguishable because of a lag in
misdemeanor cases between the collection and the
imposition of the surcharge and there was a 15 month
gap . . . .

In this case, Ms. Scruggs did have to provide a
sample. So, there were [] direct costs attributable
to Ms. Scruggs by her providing a sample that needs to
be analyzed, collected and analyzed in the data bank.

15
 No. 2014AP2981-CR

conviction, Radaj does not control our decision." Scruggs, 365

Wis. 2d 568, ¶9. Unlike Radaj, which involved multiple

surcharges for multiple felony convictions, this case addresses

whether a single DNA surcharge for a single felony conviction is

punitive.

¶36 Scruggs' reliance on the fact that the surcharge is

set at a flat rate of $200 for every misdemeanor conviction and

$250 for every felony conviction also fails. We agree with the

court of appeals’ determination that "Scruggs has pointed to

nothing, other than speculation, that the disparity between the

surcharges on a conviction for a felony as compared to a

misdemeanor reflects that the legislature was motivated by a

punitive intent." Scruggs, 365 Wis. 2d 568, ¶14; see also

Mueller, 740 F.3d at 1134 ("The burden of proving that it is a

fine is on the plaintiffs, and since they have presented no

evidence that it was intended as a fine . . . they cannot get to

first base without evidence that it is grossly disproportionate

to the annual cost . . . .").
¶37 Further, we observe that the 2014 Amendment did not

change the amount of the $250 DNA surcharge for felony

offenders. The fact that there was no change in the amount of

the surcharge for offenders convicted of a single felony

suggests that there was no punitive intent in the mandatory DNA

surcharge for felony offenders.

¶38 In sum, Scruggs has failed to produce evidence that a

$250 DNA surcharge imposed against a defendant for a single
felony conviction is unrelated to the cost for which it is
16
 No. 2014AP2981-CR

intended to compensate. There is no evidence that the

relatively small $250 surcharge is grossly disproportionate to

the cost of collecting, analyzing, and maintaining DNA

specimens. We conclude that Scruggs has failed to carry her

burden of demonstrating that the change from a discretionary to

a mandatory surcharge for a single felony conviction committed

before the effective date of the 2014 Amendment was intended as

a criminal penalty.

IV

¶39 Having concluded that Scruggs failed to show that the

legislature intended the DNA surcharge to be a criminal penalty,

we nevertheless consider next whether the 2014 Amendment is so

punitive in effect as to transform the $250 DNA surcharge into a

criminal penalty. See Rachel, 254 Wis. 2d 215, ¶42. In

applying the second part of the intent-effects test, we

determine whether the surcharge imposed by the 2014 Amendment is

"'so punitive in form and effect as to render them criminal'

despite the legislature's intent to the contrary." Id. (quoting
Hudson, 522 U.S. at 104). We afford the legislative preference

for the civil label great deference and only the "clearest

proof" will convince us that what has been denominated a civil

remedy is actually a criminal penalty. Id.

¶40 As Scruggs acknowledges in her brief, although similar

facts are considered when discussing punitive intent and

punitive effect, each requires separate analysis. In

determining whether a statute is punitive in effect, Scruggs
correctly recognizes at the outset that our analysis is guided
17
 No. 2014AP2981-CR

by the seven factors as set forth in Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168-69 (1963). Curiously, however, she

does not refer to the factors again when she analyzes whether

the surcharge has a punitive effect here.

¶41 The seven factors are whether: (1) the 2014 Amendment

involves an affirmative disability or restraint; (2) it has

historically been regarded as a punishment; (3) it comes into

play only on a finding of scienter; (4) its operation will

promote the traditional aims of punishment-retribution and

deterrence; (5) the behavior to which the 2014 Amendment applies

is already a crime; (6) an alternative purpose to which it may

rationally be connected is assignable for it; and (7) it appears

excessive in relation to the alternative purpose assigned. Id.;

see also Rachel, 254 Wis. 2d 215, ¶33. These factors provide

"useful guideposts." Hudson, 522 U.S. at 99. However, they are

not exhaustive nor is any one factor dispositive. Smith v. Doe,

538 U.S. at 97 (citations omitted).

¶42 We address first the factors that cut in favor of the
State's argument that the 2014 Amendment is nonpunitive in

effect under the facts of this case. Under the first factor,

the surcharge is nonpunitive because it does not impose an

affirmative disability or restraint, in contrast to

imprisonment. See, e.g., Hudson, 522 U.S. at 104. Given our

determination regarding intent, there is also no evidence under

the second factor that the surcharge has historically been

considered a punishment. See id. at 104-105 ("the payment of
fixed or variable sums of money [is a] sanction which ha[s] been
18
 No. 2014AP2981-CR

recognized as enforceable by civil proceedings since the

original revenue law of 1789.") (quoting Helvering v. Mitchell,

303 U.S. 391, 400 (1938)). The third factor also supports the

State because the 2014 Amendment does not have a scienter

requirement. See Rachel, 254 Wis. 2d 215, ¶51. A mandatory

surcharge is imposed against any person convicted of a felony,

without regard to the defendant's state of mind. See Hudson,

522 U.S. at 104.

¶43 Conversely, there is only one factor that more clearly

cuts in favor of Scruggs. Under the fifth factor, the DNA

surcharge applies to behavior that is already a crime,

suggesting that the surcharge has the effect of punishing

criminal behavior. However, this fact is insufficient to render

a monetary penalty criminally punitive. Id. at 105 (citing

United States v. Ursery, 518 U.S. 267, 292 (1996) ("the fact

that a forfeiture statute has some connection to a criminal

violation is far from the 'clearest proof' necessary to show

that a proceeding is criminal.").
¶44 We turn next to factors that are disputed by the

parties. The remaining factors at issue are whether: (4) the

2014 Amendment's operation will promote the traditional aims of

punishment-retribution and deterrence; (6) an alternative

purpose to which it may be rationally connected is assignable

for it; and (7) it appears excessive in relation to the

alternative purpose assigned. See Rachel, 254 Wis. 2d 215, ¶33.

¶45 This portion of our discussion regarding the effect of
the 2014 Amendment is closely related to our analysis regarding
19
 No. 2014AP2981-CR

whether the connection between the surcharge and the costs it is

intended to offset evinces a punitive legislative intent. As

set forth more fully in the above discussion regarding intent,

the relatively small size of a single $250 DNA surcharge

indicates that it does not serve the traditional aims of

punishment-retribution and deterrence. See, e.g., In re DNA,

561 F.2d at 300; see also ¶29, supra.

¶46 In considering Scruggs' claim, we observe that a

surcharge need bear "only an approximate relation to the cost it

is meant to offset." See Mueller, 740 F.2d at 1133. One basis

for reclassifying a fee as a fine would be that it "bore no

relation to the cost for which the fee was ostensibly intended

to compensate." Id.

¶47 The purpose to which the surcharge is connected is to

offset the increased burden on the DOJ in collecting, analyzing,

and maintaining the additional DNA samples. An examination of

cases cited by the parties reflects an emphasis on considering

the amount of the surcharge or fee in question and asking
whether there is a rational relationship between that amount and

the non-punitive activities the surcharge or fee is intended to

fund. For example, in Mueller, the Seventh Circuit considered

the amount of the fee in light of a list of "formidable" ongoing

tasks associated with the sex offender registry. 740 F.3d at

1134. Likewise, in In re DNA, the Fourth Circuit made a point

of noting that the defendant "offer[ed] nothing to suggest that

$250 is excessive considering the costs associated with the
[DNA] database." 561 F.3d at 300.
20
 No. 2014AP2981-CR

¶48 Like these other courts, we focus on the rational

connection between the amount of a fee and the costs the fee was

intended to cover. Scruggs has failed to demonstrate that a

$250 DNA surcharge for a single felony conviction is excessive

in relation to the activities it is intended to fund. See

Mueller, 740 F.3d at 1134 ("The burden of proving that it is a

fine is on the plaintiffs . . . ") (internal citations omitted).

Scruggs has offered nothing to suggest that the single $250

surcharge is excessive or that it bears no relation to the costs

it is intended to compensate. See In re DNA, 561 F.3d at 300;

see also Mueller, 740 F.3d at 1133. Thus, we have no reason to

think that the $250 surcharge is excessive or lacks a reasonable

relationship to the costs of collecting and analyzing the DNA

samples together with maintaining DNA profiles in a statewide

databank.

¶49 Scruggs has failed to show by the "clearest proof"

that the $250 surcharge is excessive or that there is no

rational connection between the amount of the single surcharge
and the costs it is intended to compensate. We determine that

Scruggs has not met her burden of demonstrating that the change

from a discretionary to a mandatory surcharge for a single

felony conviction that was committed before the effective date

of the 2014 Amendment is so punitive in effect as to transform a

single $250 DNA surcharge into a criminal penalty. See Rachel,

254 Wis. 2d 215, ¶33.

21
 No. 2014AP2981-CR

V

¶50 In sum, like the court of appeals, we conclude that

Scruggs has not met her burden of establishing beyond a

reasonable doubt that the amended statute is unconstitutional.

She has failed to show that the mandatory imposition of this DNA

surcharge, which was discretionary at the time she committed the

single felony offense, is punitive in either intent or effect

and thus violative of the ex post facto prohibition.

¶51 Accordingly, we affirm the decision of the court of

appeals, denying Scruggs' postconviction motion to vacate the

$250 DNA surcharge.

By the Court.–The decision of the court of appeals is

affirmed.

22
 No. 2014AP2981-CR.ssa

¶52 SHIRLEY S. ABRAHAMSON, J. (dissenting). An ex post

facto law is any law which "makes more burdensome the punishment

for a crime, after its commission . . . ." State v. Thiel, 188

Wis. 2d 695, 699, 524 N.W.2d 641 (quoting Collins v. Youngblood,

497 U.S. 37, 42 (1990)).

¶53 When Scruggs committed the crime, she faced the

possibility of a $250 DNA surcharge. Under the amended DNA

surcharge law, Scruggs now faces the certainty of a $250 DNA

surcharge.

¶54 For ex post facto purposes, the critical question is

whether the mandatory DNA surcharge statute makes more

burdensome the punishment for Scruggs' crime.

¶55 The law of this state (accepted by the parties and the

majority opinion) is that the mandatory, per-conviction DNA

surcharge statute violates the ex post facto clause when applied

to a defendant convicted in a single case of multiple crimes

committed prior to the effective date of the mandatory DNA

surcharge statute. See State v. Radaj, 2015 WI App 50, ¶¶35-36,
363 Wis. 2d 633, 866 N.W.2d 758.1

¶56 In contrast, the question in the instant case is

whether the mandatory DNA surcharge law requiring a circuit

court to impose a single $250 DNA surcharge for the conviction of

1
The majority opinion and the parties do not challenge
State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758.
Majority op., ¶35 n.8. Instead, the majority opinion
distinguishes Radaj on its facts: "Unlike Radaj, which involved
multiple surcharges for multiple felony convictions, this case
addresses whether a single DNA surcharge for a single felony
conviction is punitive." Majority op., ¶35.

1
 No. 2014AP2981-CR.ssa

a single crime violates the ex post facto clause when applied to

a crime committed prior to the effective date of the statute.

¶57 To me, a statute mandating a DNA surcharge is obviously

more burdensome on a defendant than a statute granting a circuit

court discretion to impose a DNA surcharge on a defendant.

Indeed United States Supreme Court case law supports this

approach. See Lindsey v. Washington, 301 U.S. 397, 400-02

(1937) (changing penalty from 15-year maximum imprisonment to

mandatory 15-year imprisonment violated ex post facto clause);

Weaver v. Graham, 450 U.S. 24, 32 n.17 (1981) ("a law may be

retrospective not only if it alters the length of the sentence,

but also if it changes the maximum sentence from discretionary

to mandatory").

¶58 Thus, to me, the question becomes whether the more

burdensome mandatory DNA surcharge is punishment for ex post

facto purposes.

¶59 Radaj already recognizes that a mandatory surcharge

can constitute punishment for ex post facto purposes.
¶60 Although not considered in Radaj, the mandatory

surcharge looks like punishment because the statute explicitly

makes it part of a defendant's sentence. Other statutorily

imposed surcharges, fees, and costs are not explicitly part of

the sentence.2
2
Wisconsin Stat. § 973.046(1r) provides:

(1r) If a court imposes a sentence or places a person
on probation, the court shall impose a
deoxyribonucleic acid analysis surcharge, calculated
as follows:
(continued)
2
 No. 2014AP2981-CR.ssa

¶61 Because the DNA surcharge is part of the sentence and

because the sentence is the means by which circuit courts impose

punishment, the DNA surcharge has been considered part of

punishment.3 See State v. Nickel, 2010 WI App 161, 330

Wis. 2d 750, 794 N.W.2d 765.

¶62 In Nickel, the defendant moved to vacate the DNA

surcharge imposed under the permissive DNA surcharge law. The

court of appeals explained that when "a defendant moves to

vacate a DNA surcharge, the defendant seeks sentence

modification." Nickel, 330 Wis. 2d 750, ¶5. The court of

appeals rejected "the notion that the DNA surcharge is neither a

sentence nor a component of a sentence. Nickel, 330

Wis. 2d 750, ¶6.4

¶63 Scruggs' judgment of conviction and sentence

explicitly states that she must submit a DNA sample and pay a

(a) For each conviction for a felony, $250.

(b) For each conviction for a misdemeanor, $200.
3
See State v. Edwards, 2013 WI App 51, ¶7 n.2, 347
Wis. 2d 526, 830 N.W.2d 109 (quoting State v. Gibbons, 71
Wis. 2d 94, 97, 237 N.W.2d 33 (1976) ("[A] sentence is the means
by which the court imposes a punishment or penalty provided by
statute for the offense upon the person found guilty, as
distinguished from probation, under which sentence is either
withheld or its execution stayed.").
4
At least two circuit courts have vacated the mandatory DNA
surcharge imposed on defendants who committed crimes before the
effective date of the statutory mandatory DNA surcharge. See
State v. Tharp, Milwaukee County Case Nos. 13-CF-2871 & 13-CF-
5173 (Cir. Ct. Oct. 9, 2014); State v. Vivar, Jefferson County
Case No. 13-CT-367 (Cir. Ct. Sept. 9, 2014).

3
 No. 2014AP2981-CR.ssa

$250 surcharge.5 Following the reasoning of Nickel, the DNA

surcharge (statutorily mandated as part of Scruggs' sentence)

constitutes punishment for purposes of the ex post facto clause.

¶64 I could end here and conclude that the mandatory DNA

surcharge statute is punishment and its retroactive application

runs afoul of the prohibition against ex post facto laws in the

federal and state constitutions.6

¶65 Nevertheless, I continue my ex post facto analysis,

focusing on whether the mandatory DNA surcharge statute has a

punitive effect.7

5
The majority opinion suggests that a cross-reference to
the DNA surcharge in Wis. Stat. § 814.76(5), which lists various
surcharges in criminal actions, negates any inferences that
could be drawn from the placement of the DNA surcharge in the
criminal statutes. I disagree. In any event § 814.76(5) does
not negate the fact that the DNA surcharge is, unlike other
surcharges, part of the sentence.
6
See Article I, Section 10 of the United States
Constitution and Article I, Section 12 of the Wisconsin
Constitution, prohibiting ex post facto laws.

"The animating principle underlying the ex post facto
clauses is the concept of fair warning." State ex rel Singh v.
Kemper, 2016 WI 67, ¶39, 371 Wis. 2d 127, 883 N.W.2d 86. See
also Breck P. McAllister, Ex Post Facto Laws in the Supreme
Court of the United States, 15 Cal. L. Rev. 269, 287 (1927) ("At
the root of the mischief of ex post facto laws is their
unfairness. The individual is entitled to a chance to know what
the law is before he acts. The law must be accessible. It must
not, like Caligula's, be written in small characters and hung
upon high pillars.").
7
I conclude that a punitive legislative intent can be
shown, but it is easier to demonstrate that the mandatory DNA
surcharge statute's effect is more burdensome punishment than
the discretionary statute. Similar arguments support both
punitive intent and punitive effect.

(continued)
4
 No. 2014AP2981-CR.ssa

¶66 In an ex post facto analysis, the text of the

challenged statute must be scrutinized. The proper approach is

to determine whether the mandatory DNA surcharge statute is an

unconstitutional ex post facto violation on its face.8

¶67 The text of the statutory mandatory DNA surcharge

demonstrates that the DNA surcharge is punitive in effect and

not merely a reasonable civil charge to fund the estimated costs

of state DNA programs:

Compare People v. Stead, 845 P.2d 1156, 1160 (Colo. 1993)
(resting its conclusion that a drug offender surcharge had a
punitive intent in part on the ground that "[t]he surcharge at
issue is part of Colorado's criminal code" and in part on "[t]he
amount of the fine imposed is correlated to the degree of felony
committed.") with In re DNA Ex Post Facto Issues, 561 F.3d 294,
299-300 (4th Cir. 2009) (resting its conclusion that a $250 DNA
surcharge applied per defendant did not have a punitive intent
because the surcharge's express purpose was "not punitive," it
was not codified in statutory chapter addressing "crime and
punishment," it offset DNA expenses, and it was "relatively
small [in] size.").
8
See, e.g., Hudson v. United States, 522 U.S. 93, 100-01
(1997) (the seven Mendoza-Martinez factors "must be considered
in relation to the statute on its face."); Weaver v. Graham, 450
U.S. 24, 29, 34 (1981) ("the inquiry [whether the criminal
statute ameliorates or worsens conditions imposed by its
predecessor] looks to the challenged provision, and not to any
special circumstances that may mitigate its effect on the
particular individual"); Lindsey v. Washington, 301 U.S. 397,
401 (1937) ("[T]he ex post facto clause looks to the standard of
punishment prescribed by a statute, rather than to the sentence
actually imposed. . . . It is for this reason that an increase
in the possible penalty is ex post facto regardless of the
length of the sentence actually imposed, since the measure of
punishment prescribed by the later statute is more severe than
that of the earlier.") (citations omitted).

See also 6 Wayne R. LaFave et al., Criminal Procedure
§ 25.1(c) at 765-66 (4th ed. 2015).

5
 No. 2014AP2981-CR.ssa

• The DNA surcharge is imposed and collected as part of

the sentence in every criminal conviction, regardless

of whether a DNA sample is collected or analyzed.

• The DNA surcharge is imposed and collected as part of

the sentence in every criminal conviction on the basis

of the number of convictions, regardless of whether a

DNA sample is collected or analyzed.9

• The DNA surcharge is imposed and collected as part of

the sentence in every criminal conviction, regardless

of whether the defendant has previously furnished a

DNA sample.

¶68 The most significant factor in a court's determination

that a statute's effects are not punitive is that the statute

9
Two legislative decisions suggest a punitive intent: (1)
tying the amount of the surcharge to the number of convictions
(regardless of whether the defendant supplied only one DNA
sample or several and regardless of whether the State analyzed
one DNA sample or numerous samples); and (2) imposing a lesser
DNA surcharge for misdemeanors than felonies. Cf. State v.
Radaj, 2015 WI App 50, ¶21, 363 Wis. 2d 633, 866 N.W.2d 758
("Wisconsin's DNA surcharge increases with each
conviction . . . . [T]he legislative decision to tie the amount
of the surcharge to the number of convictions, something
seemingly unrelated to the cost of the DNA-analysis-related
activities that the surcharge funds, casts doubt on legislative
intent."); State v. Elward, 2015 WI App 51, ¶7, 363 Wis. 2d 628,
866 N.W.2d 756 ("When the circuit court sentenced Elward, the
law required the surcharge, but did not permit the State to
actually collect a DNA sample. As a result, the $200 surcharge
bore no relation to the cost of a DNA test because he never had
to submit to a test. The State received money for
nothing. . . . [T]he surcharge . . . violated the Constitution's
ex post facto clause.") (citation omitted).

6
 No. 2014AP2981-CR.ssa

has a rational connection to a non-punitive purpose.10 I shall

therefore examine whether a rational connection exists between

the terms of the statutory mandatory DNA surcharge and the non-

punitive purpose of the statute to fund state DNA programs. See

majority op., ¶¶45-48.

¶69 Although the State and the majority opinion assert

that a rational connection exists, their analyses fail. This

analysis involves the factors set forth in Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 169 (1963), especially the sixth and

seventh factors that "must be considered in relation to the

statute on its face." Hudson v. United States, 522 U.S. 93,

100-01 (1997).11

¶70 The sixth Mendoza-Martinez factor addresses whether

the surcharge is rationally connected to some non-punitive

purpose. The seventh Mendoza-Martinez factor addresses whether

the surcharge "appears excessive in relation to the non-punitive

purpose" of the statute. See majority op., ¶¶44-45.

¶71 The sixth and seventh Mendoza-Martinez factors, taken
together, require courts to ask a two-part question: Is there a

rational connection between the surcharge and the non-punitive

purpose, and is the amount of the surcharge excessive in

10
"The Act's rational connection to a nonpunitive purpose
is a '[m]ost significant' factor in our determination that the
statute's effects are not punitive." Smith v. Doe, 538 U.S. 84,
102 (2003) (quoting United States v. Ursery, 518 U.S. 267, 290
(1996)).
11
See also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169
(1963) ("[T]hese factors must be considered in relation to the
statute on its face.").

7
 No. 2014AP2981-CR.ssa

relation to the non-punitive activities the surcharge funds?12

"If there is no rational connection and the fee is excessive in

relation to the activities it is intended to fund, then the fee

in effect serves as an additional criminal fine, that is, the

fee is punitive." Radaj, 363 Wis. 2d 633, ¶25.

¶72 Looking to the sixth and seventh Mendoza-Martinez

factors, it is evident that no rational and proportional

connection exists between the mandatory, per-conviction DNA

surcharge and its professed non-punitive purpose to fund the

State's DNA program.

¶73 Radaj illustrates that there is no rational connection

between the per-conviction, mandatory DNA surcharge and the

funding of the State's DNA program. Radaj was convicted of four

felonies committed prior to the effective date of the statutory

mandatory DNA surcharge. Rather than use its discretion to

impose a DNA surcharge if necessary, the circuit court was

required by statute to order Radaj to pay the $250 surcharge for

each felony, totaling $1,000. It could have been worse——Radaj
was initially charged with 21 misdemeanors in addition to the

four felonies; if Radaj had been convicted and sentenced for all

25 crimes, Radaj would have been ordered to pay $4,200 as a DNA

surcharge.

12
Specifically, we must consider "whether, under
Wisconsin's statutory scheme, there is some rational connection
between calculating the DNA surcharge on a per-conviction basis
and the cost of the DNA-analysis-related activities that the
surcharge is meant to cover." Radaj, 363 Wis. 2d 633, ¶29.

8
 No. 2014AP2981-CR.ssa

¶74 The court of appeals upheld Radaj's ex post facto

challenge to the statute and the accompanying surcharges.

Characterizing the multiple surcharges as punishment, the court

of appeals concluded that the sentence imposed was more

burdensome on Radaj than the punishment that would have been

imposed when Radaj committed the crimes (a single, permissive

surcharge).

¶75 After the majority's decision in the instant case,

Radaj, who was convicted of multiple crimes may not have to pay

any DNA surcharge at all. Yet Scruggs, who was convicted of one

crime, must pay a $250 DNA surcharge.

¶76 Is there any reason to treat Radaj and Scruggs

differently? Both committed crimes before the effective date of

the statutory mandatory DNA surcharge. 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?
¶77 I conclude that, on its face, the mandatory DNA

surcharge statute does not bear a rational connection to funding

the State's DNA program. The law calculates the DNA surcharge

regardless of whether DNA was collected or analyzed, and

calculates it on a per-conviction and felony/misdemeanor basis

regardless of whether DNA was collected or analyzed.

Accordingly, the DNA surcharge bears no relationship to the

actual cost of the DNA-analysis-related activities that the
surcharge is apparently intended to cover.

9
 No. 2014AP2981-CR.ssa

¶78 However rational a connection may be drawn between a

statute imposing a single mandatory $250 DNA surcharge for a DNA

sample actually collected and analyzed and funding the State's

DNA programs, such a statute is not the statute challenged in

this court on ex post facto grounds.

¶79 The DNA surcharge challenged in the instant case is

imposed regardless of whether a DNA sample of the defendant is

collected or analyzed; is calculated differently for

misdemeanors and felonies (yet the cost of analysis of DNA

samples in both types of crimes is the same); and is based on

the number of convictions in a case. Consequently, the

surcharge imposed by the statute challenged is not connected to—

—and is excessive in relation to——the regulatory purpose of

funding state DNA programs.

¶80 As in Radaj, the remedy for the ex post facto

violation in the instant case is to vacate the surcharge, and to

remand the cause to the circuit court to consider whether to

impose a discretionary surcharge under the statute applicable at
the time the crime was committed.

¶81 Before I conclude, I briefly discuss the obvious: The

effect of the mandatory DNA surcharge statute should be

evaluated in the context of a criminal justice system that

exacts a serious toll on criminal defendants. Collateral

consequences already burden many aspects of a defendant's daily

life, such as limiting employment and housing options. Persons

sentenced for a misdemeanor or felony in Wisconsin face up to

10
 No. 2014AP2981-CR.ssa

238 collateral consequences.13 And, on top of this, criminal

justice debt is stacking up for many defendants at a staggering

rate. Collateral consequences and criminal justice debt appear

to be leading criminal offenders into a downward spiral of debt

and recidivism.14

¶82 I thus urge the legislature and the Wisconsin Judicial

Council to take notice of and consider the unintended

consequences of the increasing statutory imposition of debt on

criminal defendants and the increasing statutory collateral

consequences. See Wis. Stat. § 13.92(2)(j).

¶83 For the reasons set forth, I dissent.

13
See ABA Criminal Justice Section, National Inventory of
the Collateral Consequences of Conviction,
https://niccc.csgjusticecenter.org/search/?jurisdiction=50 (last
visited Feb. 9, 2017).
14
See Alicia Bannon, Mitali Nagrecha, & Rebekah Diller,
Brennan Center for Justice at New York University School of Law,
Criminal Justice Debt: A Barrier to Reentry (2010),
http://www.brennancenter.org/sites/default/files/legacy/Fees%20a
nd%20Fines%20FINAL.pdf.

This report discusses the hardships on criminal defendants
imposed by "'user fees,' financial obligations imposed not for
any traditional justice purpose . . . but rather to fund tight
state budgets." Id. at 1. User fees, "while often small in
isolation," are so numerous in many jurisdictions (and becoming
more numerous) that criminal defendants end up with extensive
debt. This criminal justice debt tosses offenders into "an
endless cycle of debt." Id. This debt creates a "significant
barrier for individuals seeking to rebuild their lives after a
criminal conviction." Id. at 2. The report addresses the
concern that criminal justice debt leads to recidivism. Id. at
5.

11
 No. 2014AP2981-CR.ssa

1