Lawsuit Challenges Unconstitutional DNA Charges by Wisconsin Officials


March 7, 2018


Attorneys for three men who were assessed a $200 DNA surcharge as a result of being convicted of misdemeanors have today filed a federal civil rights class action damages lawsuit on behalf of these men and a class of 10,000 similarly situated individuals against former Attorney General J.B. Van Hollen, current Attorney General Brad Schimel and numerous high level government officials, including fourteen judges.

The suit alleges that in 2013 the Wisconsin Department of Justice, under the direction of Attorney General Van Hollen, successfully lobbied the Wisconsin legislature to enact a law requiring that a DNA sample be collected from everyone convicted of a crime in Wisconsin. It alleges that in order to build up funding for the new DNA program without expending any resources, Van Hollen requested that the new law require anyone convicted of a misdemeanor pay a $200 DNA surcharge but not submit a DNA sample for a 15 month period of time, then after the 15 month period of collecting surcharges but no samples, the new law would require anyone convicted of a misdemeanor to both pay the $200 surcharge and submit a DNA sample for analysis. The suit asserts that Van Hollen requested that the new DNA surcharge scheme be structured in this manner so that funding for the Department of Justice’s expanded DNA program would not have to come from the Department of Justice budget or from the State of Wisconsin but instead from people who were convicted of a misdemeanor and who did not have to submit a DNA sample for analysis over a 15 month period of time. The suit further asserts that Van Hollen’s scheme ensured that the Department of Justice would receive millions of dollars for doing nothing, so that it would have funding for its new DNA program so that 15 months later it would be able to handle the significant increase in DNA samples which all criminal defendants would be required to submit.

The suit claims that the DNA surcharge law violated the constitutional rights of approximately 10,000 people who, during this 15 month period of time, were convicted of misdemeanors and assessed a $200 DNA surcharge but did not submit a DNA sample. The suit alleges that Van Hollen and Schimel along with numerous judges and other high level government officials knew that the DNA surcharge law was violative of the constitutional rights of thousands of people, and that they had the opportunity and duty to intervene to prevent the violations of these people’s rights, yet they failed to do so.

“It has been over three years since the Department of Justice conceded that the DNA surcharge statute they came up with was unconstitutional, yet during that time the Department of Justice has just sat back and done nothing as hundreds of thousands of dollars in illegal DNA surcharges continue to be collected and deposited into the Department of Justice bank accounts. To this day, the Department of Justice is still receiving money from people who agreed to pay the DNA surcharge on monthly payment plans,” said John Bradley, one of the plaintiffs’ attorneys. “This is a gross example of the leadership of the Wisconsin Department of Justice not playing fair with the citizens of this state.”

Ben Elson of the Chicago-based People’s Law Office, another attorney representing the plaintiffs, said, “the people of the State of Wisconsin need to know that their Department of Justice built its DNA database on a rotten foundation from money that was unconstitutionally taken from more than ten thousand people and that their criminal justice system condoned and facilitated this taking. We hope that this lawsuit will correct this outrageous wrong.”

The plaintiffs are represented by John Bradley of Strang Bradley, LLC in Madison, and Ben Elson, Flint Taylor and Brad Thomson of the People’s Law Office.