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MADISON, Wis. (AP) — The Wisconsin Department of Justice and state court officials have unconstitutionally applied a surcharge to maintain the state's DNA database, three convicts contend in a federal lawsuit filed Wednesday.

The lawsuit revolves around a 2013 law that requires anyone convicted of a misdemeanor or a felony to submit DNA and pay a $200 surcharge. Convicts sentenced or placed on probation on or after Jan. 1, 2014, had to pay the surcharge but didn't have to begin submitting DNA until the spring of 2015, a 15-month lag. The delay was created to allow the DOJ to accumulate funds to cover analysis of the additional submissions before they began to flow in.

That structure allowed the DOJ to take in millions of dollars while doing nothing and amounts to an ex post facto constitutional violation, according to the lawsuit. The surcharge as applied to people who committed their crimes before Jan. 1, 2014, but were sentenced after that date, amounts to a punitive fine rather than a fee because it had nothing to do with performing DNA analysis, the lawsuit argues.

A 2015 state appellate court ruled that applying the surcharge to defendants who committed offenses prior to Jan. 1, 2014, was unconstitutional, but Attorney General Brad Schimel has refused to return the money to the people who paid it, according to the lawsuit.

"The people of the State of Wisconsin need to know that their Department of Justice built its DNA database on a rotten foundation," said Ben Elson, an attorney for the plaintiffs.

DOJ spokesman Johnny Koremenos said Wednesday that the agency hadn't been served with the lawsuit yet. He had no further comment.

The lawsuit was brought by Jacob Fish, who was convicted in 2014 of misdemeanor possession of drug paraphernalia in June 2013; Tomick Copeland, who was convicted in 2014 of misdemeanor battery in September 2013; and Taylor Claybrook, who was convicted in 2014 of committing misdemeanor theft in November 2013. Both Fish and Copeland paid the surcharge. Claybrook spent two days in jail for failing to pay it, the lawsuit alleges.

The lawsuit seeks class-action status on behalf of more than 10,000 similarly situated individuals and unspecified damages.


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