962 F.2d 302 (4th Cir. 1992), 91-6057, Jones v. Murray

Docket Nº:91-6057.
Citation:962 F.2d 302
Party Name:Lawrence R. JONES; Dempsey Orndoff; Glen Averill; Raymond Lyons; Charles Harris; Richard Jones, Plaintiffs-Appellants, v. Edward W. MURRAY, Director of Department of Corrections; Paul B. Ferrara, Director of Division of Forensic Science, Defendants-Appellees.
Case Date:April 07, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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962 F.2d 302 (4th Cir. 1992)

Lawrence R. JONES; Dempsey Orndoff; Glen Averill; Raymond

Lyons; Charles Harris; Richard Jones,



Edward W. MURRAY, Director of Department of Corrections;

Paul B. Ferrara, Director of Division of Forensic

Science, Defendants-Appellees.

No. 91-6057.

United States Court of Appeals, Fourth Circuit

April 7, 1992

Argued Oct. 28, 1991.

As Amended April 27, 1992.

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Harold Jonathan Krent, Post Conviction Assistance Project, University of Virginia School of Law, Charlottesville, Va., argued (James T. McLaughlin, Philip J. Paseltiner and Pamela Vernon, Third-Year Students, on brief), for plaintiffs-appellants.

Mark Ralph Davis, Asst. Atty. Gen., Public Safety & Economic Development Div., Richmond, Va., argued (Mary Sue Terry, Atty. Gen., on brief), for defendants-appellees.

Before MURNAGHAN and NIEMEYER, Circuit Judges, and HARVEY, Senior United States District Judge for the District of Maryland, sitting by designation.


NIEMEYER, Circuit Judge:

Section 19.2-310.2 of the Virginia Code, effective July 1, 1990, requires convicted felons to submit blood samples for DNA analysis "to determine identification characteristics specific to the person" and provides for the creation of a data bank of the information for future law enforcement purposes. Six inmates have challenged the statute's constitutionality, contending that it authorizes the involuntary extraction of blood in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. They also contend the statute violates the Ex Post Facto Clause principally because it defers until receipt of a blood sample the release of inmates who committed crimes before the statute's effective date.

On cross-motions for summary judgment, the district court upheld the constitutionality of the Virginia statute against both attacks. In the inmates' appeal, which presents a case of first impression for us, we affirm except to the limited extent that the statute purports to authorize a modification of mandatory parole conditions for prisoners incarcerated on July 1, 1990.


Deoxyribonucleic acid (DNA) is a complex molecule which is found in the nuclei of human cells and carries a person's genetic information. A molecule of DNA is comprised of two nucleotide strands coiled around each other and connected by rungs, like a twisted ladder. The strands and rungs link thousands of small components which exist in a number of biochemical variations and are arranged differently for every individual except for identical twins.

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At present, the white blood cells are the most commonly used source for the extraction and analysis of human DNA.

Improved scientific technology has prompted efforts to use the individuality of a person's DNA in the context of criminal law enforcement. The method for "typing" DNA known as the "DNAPrint" test is favored by the Commonwealth of Virginia and is currently being used elsewhere with varying degrees of success for criminal identification. This scientific process for analyzing DNA produces a "print" which contains a pattern of bands that is supposed to be unique to a particular person's DNA. One potential use for this print would be to compare it with an analysis of DNA material found at a crime scene as a means of identifying or exonerating a particular criminal suspect. Commonwealth officials claim that material susceptible to DNA analysis, including blood, skin tissue, hair follicles, and semen, may be found at thirty per cent of all crime scenes. Another application might involve use of the print for identifying a criminal suspect who has attempted to alter and conceal his or her identity and who had previously provided a sample to a DNA data bank.

In 1990, the Commonwealth of Virginia by statute established a DNA data bank and procedures for the collection, analysis, and exchange of DNA information for the purpose of criminal law enforcement. See Va.Code Ann. §§ 19.2-310.2 through 19.2-310.7 (Michie 1990). Commonwealth officials say that the program attempts to address the problem of felony recidivism in Virginia by identifying and increasing the likelihood of convicting repeat offenders and by deterring those who might otherwise commit a second felony. According to a study of violent felons convicted in Virginia between 1985 and 1987, 36.4% had at least one prior conviction for a felony. Only 26% had no prior criminal record and just over 19% had previously been convicted of nonviolent felonies. A United States Department of Justice survey of more than half of those persons released from the prisons of eleven states in 1983 revealed that an estimated 62.5% were arrested again for a felony or serious misdemeanor within three years after release.

The 1990 Virginia law provides that incarcerated felons shall provide the Commonwealth with a blood sample for DNA analysis and storage. Va.Code Ann. § 19.2-310.2. The provision applies to (1) all persons convicted of a felony on or after July 1, 1990; (2) all felons incarcerated as of that date; and (3) all sex offenders convicted under §§ 18.2-61 through 18.2-68 of the Virginia Code, and incarcerated on July 1, 1989. 1 The law authorizes the release of DNA information to "federal, state and local law-enforcement officers upon request made in furtherance of an official investigation of any criminal offense," see Va.Code Ann. § 19.2-310.5, but also establishes as a crime the unauthorized dissemination or use of information from the data bank, see Va.Code Ann. § 19.2-310.6. The collection of DNA samples is assigned to the Virginia Department of Corrections and the tasks associated with the DNA analysis and maintenance of the data bank are to be conducted by the Virginia Bureau of Forensic Science.

In implementing the program, the Department of Corrections established procedures by which blood samples would be drawn from those inmates falling within the scope of § 19.2-310.2. With regard to felons entering state correctional facilities on or after July 1, 1990, the department's guidelines require the chief nurse at reception and classification centers to "cause an additional sterile sample of blood to be drawn at the time routine blood samples are taken for intake physicals." In addition, the department requires "[e]very felon who is in custody on or after July 1, 1990, and has not previously provided a sample of blood for DNA testing purposes, [to] provide a blood sample prior to the individual's discretionary parole eligibility date (or thirty days prior to the mandatory

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parole date if the discretionary date has passed)."

On October 9, 1990, six inmates at the Tazewell Correctional Unit Number 31 challenged the implementation of the DNA program in an action filed pursuant to 42 U.S.C. § 1983 against Edward Murray, the Director of the Virginia Department of Corrections and Paul Ferrara, the Director of the Bureau of Forensic Science. The inmates requested a temporary restraining order and a preliminary injunction, as well as class certification for those individuals who have been or will be convicted of a felony under the laws of Virginia and who will be subjected to blood testing for DNA analysis. The inmates principally complained that Virginia's program is unconstitutional on three grounds: 1) the collection and analysis of blood samples violates the inmates' Fourth Amendment rights; 2) the retroactive imposition of the blood test requirement as a condition of release, including release under mandatory parole, violates the Constitution's Ex Post Facto Clause; and 3) the imposition of a blood-test condition on the inmates' release date interferes with a vested liberty interest and violates the Fourteenth Amendment's Due Process Clause. The district court denied the requests for preliminary relief, but on October 26, 1990, certified a plaintiff class.

On March 4, 1991, on cross-motions for summary judgment the court decided the Fourth Amendment question in favor of the Virginia officials. 763 F.Supp. 842. The court held that blood testing of incarcerated felons for the purpose of future identification falls within the Supreme Court's "special needs" exception to the Fourth Amendment's warrant requirement. Balancing the state interest in establishing the DNA bank against the intrusion upon the inmates' privacy interest, the court determined that the taking of blood samples under these circumstances is reasonable. The district court further held that the blood test requirement does not violate the Ex Post Facto Clause, because it is neither a punitive measure nor a requirement of parole eligibility, and the inmates' parole is not affected. Rather, it concluded, release from prison is simply deferred until the blood sample is provided. Finally, the district court concluded that an inmate's release date does implicate a protected liberty interest and thus a "prisoner must be given some process before he is held beyond his established parole release date." Neither party appealed the district court's decision with respect to the Due Process issue.


The principal argument advanced by the inmates is grounded on the contention that Virginia's blood testing program violates the inmates' Fourth Amendment rights against unreasonable searches and seizures by authorizing the search of their bodies in the absence of any individualized suspicion. They argue that the general purpose of enforcing the law by improving methods of identification is not sufficient to justify testing an entire class of people merely because the recidivism rate is higher for them. They note that several classifications of persons, for example, those affected by mental disease or environmental factors, who have never before been convicted of a crime, might statistically be equally likely to commit future crimes. They contend that the district court's...

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