Clarifying the Application of Wisconsin's New DNA Surcharge Law

State v. Cox and State v. Williams

Wisconsin, like many states, routinely imposes statutory fees on criminal defendants to offset the costs they impose on the criminal justice system. These “surcharges” are different in character from fines, precisely because their purpose is to reimburse the State rather than punish the offender.  An example is 2013 Wisconsin Act 20, which imposes a mandatory surcharge of $250 for each felony conviction and $200 for each misdemeanor. These funds help maintain the Wisconsin Department of Justice’s DNA databank and partially offset the costs of DNA-related law enforcement activities like collecting suspects’ DNA, processing crime-scene DNA evidence, and comparing DNA profiles against known individuals. 


Act 20 updated prior Wisconsin law, under which the surcharge was imposed only on felons and, with some exceptions, could be waived at courts’ discretion. The changes took effect for all sentences imposed on or after January 1, 2014. The cases below each litigate some aspect of the new DNA-surcharge regime. Both are set for oral argument in the Wisconsin Supreme Court on March 16, 2018.


State v. Cox


Michael Cox was arrested after driving the wrong way down approximately three miles of a Milwaukee interstate in 2015 while intoxicated. He pleaded guilty to second-degree recklessly endangering safety and was sentenced to 18 months’ confinement and 30 months’ extended supervision. At his sentencing hearing, the court erroneously told Cox that, since he had already submitted a DNA sample in connection with a prior offense, it could waive the $250 DNA surcharge for his new conviction. The court’s subsequent written judgment of conviction correctly imposed the surcharge as required under Act 20. Cox’s postconviction motion to amend the written judgment to reflect the oral pronouncement’s “waiver” of the surcharge was denied.


The Court of Appeals certified this case to the Wisconsin Supreme Court in order to resolve the question of whether, under the language of the new DNA-surcharge statute, courts still have discretion to waive the surcharge. The State argues that the new statute means what it says: a circuit court “shall impose” the appropriate DNA surcharge for each conviction.


State v. Williams


On April 25, 2013, Jamal Williams and his younger brother, Tousani Tatum, attempted an armed robbery during a drug deal that resulted in someone’s death. Williams arranged the drug deal and drove himself and Tatum to that location, knowing that Tatum was armed and that he planned to rob the dealer.  When the dealer tried to escape, Tatum shot the victim, who was sitting in a nearby parked car.  The victim died in the presence of his 3-year-old daughter, who was also in the car.  Williams drove himself and Tatum away from the scene, making no effort to call for help for the victim.


In January of 2014, Williams pleaded guilty to felony attempted armed robbery as party to a crime. Though the crime occurred before the new DNA-surcharge regime took effect, Williams was sentenced after the effective date of January 1, 2014.  Pursuant to the new statute, the court imposed the now-mandatory $250 DNA surcharge in addition to sentencing Williams to 10 years’ confinement and 7.5 years’ extended supervision.  On appeal, Williams seeks removal of the surcharge on ex post facto grounds.  The State argues that the Constitution only prohibits ex post facto punishments, and that the DNA surcharge is not “punishment” under the well-settled test articulated by the U.S. Supreme Court and applied in existing caselaw.


Litigation Closed: