(concurring).
¶ 28. The majority opinion is a correct reading and application of the law *268governing this case. I join it in full. I write separately to express my view that State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, 866 N.W.2d 756, and State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, were wrongly decided, and to urge the Wisconsin Supreme Court to take this case and bring clarity and certainty to this area of law.
¶ 29. 2013 Wis. Act 20, the state budget bill, dramatically expanded DNA collection in Wisconsin. Previously, only those convicted of felonies and certain misdemeanors were required to provide a DNA sample. Wis. Stat. § 973.047(1f) (2011-12). And only those convicted of certain sex crimes were required to pay one $250 surcharge to support the DNA databank. Wis. Stat. § 973.046(1r) (2011-12). The surcharge for other felony offenders was within the circuit court's discretion. Sec. 973.046(1g). In 2013 Wis. Act 20, the legislature chose to require DNA samples from a vast new audience—all those arrested for felonies (including juveniles committing acts that would be felonies), and all those convicted of misdemeanors. See 2013 Wis. Act 20, §§ 2343, 2356.
¶ 30. Such an expansion of the databank would no doubt cost millions of dollars.1 To pay for this, the legislature added a new surcharge of $200 per misdemeanor and $250 per felony conviction. See 2013 Wis. Act 20, §§ 2354-55. These surcharge fees apply no matter whether an individual has submitted a sample or not. Additionally, all surcharges are now mandatory, *269not discretionary. Id. The surcharge also applies per conviction; no longer is it per case. Id. Moreover, the per felony surcharge applies only to those convicted of their crimes, though again, the sample is required of all arrested for felonious acts. See 2013 Wis. Act 20, §§ 2343, 2355.
¶ 31. While the merits and constitutionality of this expanded DNA collection scheme were considered, debated, and adjudicated,2 the reasons for Wisconsin's dramatic expansion of DNA collection are not mysterious. In a January 2013 column advocating for the change, then-Attorney General J.B. Van Hollen explained "several important purposes":
First, it helps law enforcement and prosecutors efficiently and successfully investigate and prosecute crimes that may otherwise go unsolved. Second, it increases the likelihood that law enforcement can identify perpetrators of previously unsolved crimes and apprehend them before they commit future crimes. Third, including arrestee DNA in the data bank has the potential to exonerate innocent persons wrongfully charged or convicted of certain crimes. Fourth, DNA collection at arrest will substantially enhance the ability of law enforcement to accurately identify persons in custody. [3]
¶ 32. Thus, from the very beginning, the expanded DNA databank—and the surcharges supporting it—had purposes far broader than collection and *270analysis of DNA samples. The DNA databank is a broad criminal justice tool used to solve old crimes, exonerate the innocent, and rule in and rule out suspects in criminal investigations. Similarly, the funding mechanism for this is, on its face, not directly connected to the gathering and analysis of samples. It does not charge all who submit samples, only those convicted. And it provides that repeat offenders who may have already submitted samples will need to pay anyway. In short, the surcharge is plainly designed to function as a sort of tax on convicted criminals for use of the criminal justice system in support of broad public safety goals—goals far beyond any individual defendant and their DNA.
¶ 33. Many object to this way of funding basic public safety services. But those policy arguments are irrelevant to the legal question here. What is relevant is that Wisconsin's DNA surcharge is not unique—not at all. In fact, the statute books are filled with charges and fees and surcharges that are not denominated criminal fines, yet are assessed against convicted criminals or those subject to civil forfeitures. Some fill the general funds of the state or county; others go to specific causes. Here are a few examples:
• A child pornography surcharge of $500 per image which goes to the Department of Justice (DOJ) to fund investigations of sexual assaults against children and grants for sexual assault victim services. Wis. Stat. § 973.042.
• A bisphenol A (BPA) enforcement surcharge, which adds fifty percent to the normal fine or forfeiture. *271Wis. Stat. § 100.335(7).4 All of these funds go the Department of Agriculture, Trade, and Consumer Protection to fund enforcement of BPA prohibitions.
• A crime lab and drug law enforcement surcharge of thirteen dollars per count that applies when the court imposes a sentence, places a person on probation, or imposes a forfeiture. These funds also go to DOJ to fund drug law enforcement, crime labs, and other services. Wis. Stat. § 165.755.
• The crime prevention funding board surcharge allows counties to impose a fine of twenty dollars per count to help fund crime prevention funding boards. Wis. Stat. § 973.0455.
• The domestic abuse surcharge under Wis. Stat. § 973.055 of $100 per count for conviction of certain crimes. All funds go to the Department of Health Services to fund grants to domestic abuse service organizations.
• The driver improvement program surcharge, which costs offenders $435 per case, when the court imposes a fine or forfeiture for OWI-related offenses. Wis. Stat. § 346.655. Counties receive 50.3% of these fees for alcohol treatment services (or to tribal facilities, if applicable). The Department of Administration (DOA) receives 49.7% of the remaining funds. Id.
• Those convicted of certain drug fines must also pay the drug abuse program improvement surcharge of seventy-five percent of the penalty—all of which go to the Division of Hearings & Appeals to fund drug-abuse-related programming. Wis. Stat. § 961.41(5)(a).
*272• The drug offender diversion surcharge adds ten dollars for each conviction for those sentenced or placed on probation for property crimes under Wis. Stat. ch. 943. These funds go to counties for drug offender programming. Wis. Stat. § 973.043.
• GPS tracking via the Department of Corrections (DOC) receives financial support in the form of a $200 per count surcharge (the global positioning system tracking surcharge) imposed on those convicted of a temporary restraining order, injunction, or other violation under Wis. Stat. §§ 813.12 or 813.125. Wis. Stat. § 973.057.
• The ignition interlock surcharge goes to the county treasury. This fifty dollar surcharge is paid when a court enters an order under Wis. Stat. § 343.301(lg) relating to OWI violations. Sec. 343.301(5).
• Our county jails are funded in part by a jail surcharge of one percent of a fine or forfeiture, or ten dollars per count, whichever is greater. Wis. Stat. § 302.46(1).
• Under the juvenile delinquency victim and witness surcharge, DOJ receives twenty dollars per case when juveniles are adjudicated delinquent to fund victim and witness services. Wis. Stat. § 938.34(8d).
• The penalty surcharge funds DOJ law enforcement training activities via a twenty-six percent surcharge on most fine or forfeitures. Wis. Stat. § 757.05.
• Those paying restitution under Wis. Stat. § 973.20(1r) must pay an additional ten percent restitution surcharge, monies which go straight to counties. Wis. Stat. § 973.06(1)(g). Where DOC or the clerk of circuit court is responsible for transferring restitution to the appropriate person or victim, an additional five percent surcharge is assessed to *273compensate DOC or the clerk for its administrative expenses. Sec. 973.20(11)(a).
• OWI-related offenders must, in addition to all other fines and surcharges, pay fifty dollars per case, all of which goes to DOAto fund the safe ride program. Wis. Stat. § 346.657(1).
• The crime victim and witness surcharge costs offenders sixty-seven dollars per count for misdemeanors and ninety-two dollars per count for felonies; the surcharge funds DOJ victim and witness services. Wis. Stat. § 973.045(1)(a)-(b).
¶ 34. While one might wonder if all of this is a good idea, this partial listing of additional assessments paid by those subject to the state's power helps us squarely see this fact; significant components of the state justice system and programs aimed at keeping people out of it are funded by surcharges different only in detail, not kind, from the DNA surcharge. And the question before us is whether such surcharges constitute an ex post facto law when they are assessed against those who committed their crimes before the particular surcharge existed. The majority gets the answer to this question exactly right under our precedents. I believe those precedents are wrong, however, and they should be overturned.
¶ 35. Our constitutions—both federal and state —create numerous protections for those on the wrong end of the criminal justice system. Our founders did this precisely because they were worried about a government that could deprive people of life, liberty, and property unjustly. They worried about this because they saw it with their own eyes. As Alexander Hamilton observed, "The creation of crimes after the commission of the fact" had been among "the favorite *274and most formidable instruments of tyranny" in times past. The Federalist No. 84. How could it be right, for example, to punish a person for something that was not a crime when the deed was done, or to punish a person more severely than was authorized when the crime was committed? Such was deemed to be the kind of arbitrary and unjust power that no government had the authority to exercise. This violation of our God-given rights, our founders believed, could not be tolerated. And so, they enshrined an injunction against the imposition of "any ex post facto" law in our charter of liberty.
¶ 36. The test that governs the ex post facto inquiry is well settled in the law.5 Under the intent-effects test, we first examine the legislative intent of a *275law. State v. Scruggs, 2017 WI 15, ¶¶ 16-17, 373 Wis. 2d 312, 891 N.W.2d 786. If the legislative intent is determined to be punitive, the inquiry ends and the law is considered punishment. Id., ¶ 16. If the purpose is deemed civil and nonpunitive, however, we consider whether the law "is so punitive in form and effect as to 'transfer [m] what was clearly intended as a civil remedy into a criminal penalty.' "6 Id. (citations omitted). *276" 'Only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Hudson v. United States, 522 U.S. 93, 100 (1997) (citation omitted). With this test in mind, the DNA surcharge cannot, in its applications presented to our courts thus far, be considered punishment.
¶ 37. The Wisconsin Supreme Court has already found—correctly in my opinion—that the intent of the DNA surcharge is not punitive. Scruggs, 373 Wis. 2d 312, ¶ 3. The court explained that the DNA surcharge was "intended to offset the costs associated with the collection and analysis of samples together with the maintenance of the state's DNA databank." Id., ¶ 30. In other words, it is not just about collecting a sample. The surcharge compensates for collection, analysis, and maintenance of samples of the databank. This is correct, and I would add that samples are maintained specifically to support all of the aforementioned goals of the expanded DNA databank.
¶ 38. This rationale, in my view, strongly undercuts the reasoning of Elward and Radaj, both of which base their conclusion on the rational connection between the intent and effects of the law, and in so doing, take a cabined and cramped view of the purpose of the DNA databank.
¶[ 39. Elward—though limited by its facts to the imposition of a DNA surcharge for misdemeanants at a time when the law did not require a sample—reasons that the DNA surcharge makes no sense if a DNA *277sample is not being taken. The court concluded that "the $200 surcharge bore no relation to the cost of a DNA test because he never had to submit to a test." Elward, 363 Wis. 2d 628, ¶ 7.7 And therefore, "[t]he State received money for nothing," which only served "to punish Elward without pursuing any type of regulatory goal." Id. This seems to conflict with Scruggs, which made clear that the fee is aimed at maintenance of the databank, not just sample collection and analysis. It also ignores the broad public safety goals underlying the maintenance of the DNA databank. The surcharge is pointedly not connected to the taking and processing of a sample because the DNA databank does not exist purely for the collection and processing of DNA samples.8 Elward is wrong, and the supreme court should overrule it.
¶ 40. Similarly, Radaj suggested there is no rational reason for charging defendants on a per felony basis. Radaj, 363 Wis. 2d 633, ¶ 32 ("[W]e can conceive of no reason why such costs would generally increase in proportion to the number of convictions, let alone in direct proportion to the number of convictions."). I disagree. It is perfectly reasonable to say that someone who has committed four felonies should *278be assessed at a level (approximately) more commensurate with his or her burden on the criminal justice system. This is particularly true where those arrested for a felony and who submit a sample do not pay for it at all. The legislature has created a user fee, not different in kind from the percentage or other count-based surcharges. Radaj is wrong under the intent-effects test, and I urge the supreme court to take this case and overrule it.
¶ 41. To summarize, I see the statute thusly: The DNA databank is a crime-solving, crime-fighting public safety tool. It supports law enforcement investigatory efforts and, in so doing, saves time, money, and resources that might be otherwise devoted. It serves criminal defendants who might be wrongly accused, or even worse, wrongly convicted. In short, the DNA databank was expanded to further support, assist, and improve the administration of criminal justice in the state of Wisconsin. The funding mechanism, then, must be seen in this light. The legislature needed additional funds for this broader cause, and decided to place the burdens not on those necessarily required to give a sample, but on those convicted of crimes. Policy merits aside, it is altogether rational to assess a fee aimed at solving crimes against those who commit them; at the very least, it is no less rational than the multitude of fees and surcharges that work exactly the same way. The conclusions of Elward and Radaj, on the other hand, wrongly assume that surcharges exist to collect and process and, in the strictest sense, maintain a DNA sample for a given defendant. This narrow view is not supported by the statute itself, nor is it consistent with the test which requires the "clearest proof' that the effects override the legislature's nonpunitive intent.
*279¶ 42. Legislating is not marksmanship. We should not pretend it is. The DNA databank has broad public policy purposes that far exceed the collection and maintenance of a DNA sample. The legislature's funding mechanism, applied retroactively, certainly imposes a greater deprivation of a criminal's property than was authorized at the time the crime was committed. In this respect, it is no different than the surplus of surcharges, assessments, and user fees that currently fund substantial parts of our legal and criminal justice system. Accordingly, it would appear that either all of these deprivations are punishments, or none of them are.
f 43. Scruggs, Radaj, and Elward sit in uneasy, unsettled tension. Together, they create all sorts of questions. For example, if someone committed five crimes before 2013 Wis. Act 20 took effect, with four prosecuted in one trial and the fifth prosecuted in a separate proceeding, is the fee $250 or $500? Does it matter when or if they submitted a blood sample? A single, coherent rule is needed, and here, warranted. Application of the mandatory surcharge in accordance with the statute is not, under the facts of Scruggs, Radaj, Elward, or this case, punishment. Under the intent-effects test that governs us, I do not believe Williams has provided the "clearest proof' that the effects of this deprivation on him overrides the civil, nonpunitive intent behind the DNA surcharge the law requires him to pay.
| 44. For these reasons, I join the majority opinion, and urge the Wisconsin Supreme Court to consider this case and reverse both this court's opinion and the precedents that bind us.
See Maryland v. King, 133 S. Ct. 1958, 1968, 1980 (2013) (holding that a similar Maryland law allowing DNA collection from arrestees did not violate the Fourth Amendment).
J.B. Van Hollen, J.B. Van Hollen: DNA collection at arrest is vital tool, The Cap Times (Jan. 11, 2013), http://host.madison.com/ct/news/opinion/column/j-b-van-hollen-dna-collection-at-arrest-is-vital/article_ff16fe00-5 b56-lle2- ad91-0019bb2963f4.html.
Jail is one of the potential consequences for manufacturing or selling a child's container that contains BPA. Wis. Stat. § 100.335(2), (4)(b).
Some early cases suggest that the original punishment inquiry was simply whether a given law operated to deprive someone of their life, liberty, or property as a consequence for past misconduct.
In Cummings v. Missouri, 71 U.S. 277, 324-25 (1866), the court found that a provision abridging a person's "right to preach as a priest of the Catholic Church, or to teach in any institution of learning" because of previous bad acts violated the Ex Post Facto Clause. The court explained that any "deprivation or suspension" of a person's "inalienable rights" to "life, liberty, and the pursuit of happiness" in response to "past conduct is punishment, and can be in no otherwise defined." Id. Notably, the court did not appear to defer to the intent of the enactment in any way—which our current intent-effects inquiry does. The court stated that "[t]he clauses in the Missouri constitution, which are the subject of consideration, do not, in terms, define any crimes, or declare that any punishment shall be inflicted, but they produce the same result upon the parties, against whom they are directed, as though the crimes were defined and the punishment was declared. Id. at 327 (emphasis added).
The Supreme Court similarly concluded in Ex parte Garland that a provision prohibiting a person from practicing *275law was punishment because the deprivation was dependent upon past misconduct. Ex parte Garland, 71 U.S. 333, 377—78 (1866). The court explained that "exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct." Id. at 377. One commentator characterizes the definition of punishment enunciated in these cases as simply "(a) a deprivation or suspension that was (b) in response to past conduct." Joshua Kaiser, We Know it When We See It: The Tenuous Line Between "Direct Punishment" and "Collateral Consequences," 59 How. L.J. 341, 345 (2016).
Were the test before us here more like this query—whether the state is purporting to deprive someone of their liberty or property more so than they could have at the time a crime was committed—it seems to me that all surcharges applied after-the-fact would violate the ex post facto clause. After all, surcharges deprive a criminal of his or her property in a manner largely indistinguishable from a criminal fine. But that is not the test that governs. The intent-effects inquiry is.
In order to determine whether something is so "punitive in effect" as to transform it into criminal punishment, the following, nonexhaustive list of factors are "useful guideposts":
(1) whether [the law in question] involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which [the law] applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.
*276State v. Radaj, 2015 WI App 50, ¶ 14, 363 Wis. 2d 633, 866 N.W.2d 758 (citation omitted); see also Hudson v. United States, 522 U.S. 93, 99 (1997) (describing the factors as "useful guideposts); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).
In State v. Elward, 2015 WI App 51, ¶ 1, 363 Wis. 2d 628, 866 N.W.2d 756, the State conceded that the statute violated the ex post facto clause, but we "decided to write an opinion anyway" to clarify the law for a potentially large class of defendants.
This was true even before 2013 Wis. Act 20 was passed. In a 2004 case, we rejected a challenge to the payment of a DNA surcharge even though no sample was collected. State v. Jones, 2004 WI App 212, 277 Wis. 2d 234, 689 N.W.2d 917. We held, "Nothing in [Wis. Stat.] § 973.046(1g) requires a DNA sample to be collected before the court can order the payment of the surcharge." Jones, 277 Wis. 2d 234, ¶ 7.