In re Dna ex Post Facto Issues

• Decision Date: 26 March 2009
• Docket Number: No. 08-6169.,08-6169.
• Citation: 561 F.3d 294
• Parties: In re DNA EX POST FACTO ISSUES Anthony Eubanks, Plaintiff-Appellant, v. South Carolina Department of Corrections; William D. Catoe, Individually and in his official capacity as Director, South Carolina Department of Corrections; South Carolina Law Enforcement Division, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

561 F.3d 294

In re DNA EX POST FACTO ISSUES Anthony Eubanks, Plaintiff-Appellant, v. South Carolina Department of Corrections; William D. Catoe, Individually and in his official capacity as Director, South Carolina Department of Corrections; South Carolina Law Enforcement Division, Defendants-Appellees.

No. 08-6169.

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2009.

Decided: March 26, 2009.

ARGUED:

Justin Kahn, Kahn Law Firm, Charleston, South Carolina, for Appellant. Andrew Lindemann, Davidson & Lindemann, Columbia, South Carolina, for Appellees.

Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge TRAXLER wrote the opinion, in which Judge DUNCAN and Judge AGEE joined.

OPINION

TRAXLER, Circuit Judge:

Anthony Eubanks appeals a district court order granting summary judgment against him in his ex post facto challenge to a South Carolina law requiring that certain prisoners provide DNA samples for South Carolina's DNA bank and pay a $250 processing fee before being paroled or released. We affirm the district court's ruling regarding the constitutionality of the requirements that a sample be provided and that the processing fee be paid. We hold, however, that the provision requiring payment of the fee before the prisoner is paroled or released from confinement may not be enforced against Eubanks.

I.

Eubanks was convicted in state court of criminal sexual conduct in the first degree and sentenced on April 6, 1995, to 28 years' imprisonment in the South Carolina Department of Corrections ("SCDC"). The South Carolina General Assembly enacted the State Deoxyribonucleic Acid Identification Record Database Act, see S.C.Code Ann. §§ 23-3-600 et seq. (2008) ("the Act"), to become effective on July 1, 1995. The Act provided, as is relevant here, that "[a]t such time as possible and before parole or release from confinement, a suitable sample from which DNA may be obtained for inclusion in the State DNA Database must be provided by . . . a person who is convicted or adjudicated delinquent before July 1, 1995, and who was sentenced to and is serving a term of confinement on July 1, 1995, for . . . criminal sexual conduct in the first degree." S.C.Code Ann. § 23-2-620(B) (1999).¹ Throughout the time period relevant to this case, the Act provided:

(A) A person who is required to provide a sample pursuant to this article must pay a two hundred and fifty dollar processing fee which may not be waived by the court. If the person is incarcerated, the fee must be paid before the person is paroled or released from confinement and may be garnished from wages the person earns while incarcerated. If the person is not sentenced to a term of confinement, payment of the fee must be a condition of the person's sentence and may be paid in installments if so ordered by the court.

S.C.Code Ann. § 23-3-670 (2007). The processing fees are the primary source of funding for South Carolina's DNA database.

In 1999 SCDC began the process of obtaining the inmate samples and collecting the fees from their prison trust funds. Pursuant to this process, Eubanks was required to provide a sample and SCDC deducted the full processing fee from his trust account.

In 1999 Eubanks filed suit in federal district court under 42 U.S.C.A. § 1983 (West 2003) against SCDC, the State Law Enforcement Division ("SLED"), and former SCDC Director William D. Catoe (collectively, "the State"). Eubanks alleged that the requirements that each inmate provide a DNA sample to be included in the DNA database and that each pay a $250 processing fee violate the Ex Post Facto Clause of the United States Constitution.

Eubanks' suit was consolidated with the pending suits of several other inmates in an order that limited plaintiffs to raising the ex post facto challenges discussed above. All other constitutional claims or challenges to the Act that were asserted in any of the consolidated suits were dismissed without prejudice. Eubanks did not subsequently file a separate action.

Reviewing cross-motions for summary judgment, the district court denied the plaintiffs' motion and granted summary judgment against them. The court ruled that the DNA-sample and processing-fee requirements were not ex post facto because they were not punitive. The court further concluded that the Act did not prohibit the parole or release of prisoners who had not paid their required fees.

II.

Eubanks now argues that the district court erred in granting summary judgment against him.

We review the grant of summary judgment de novo. See Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.2008). Article 1, § 9 of the United States Constitution provides that "[n]o Bill of Attainder or ex post facto Law shall be passed." The Supreme Court has explained that a statute is prohibited as ex post facto if it "`punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed.'" Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925)). Thus, a statute cannot be ex post facto unless it is penal in nature. See United States v. O'Neal, 180 F.3d 115, 122 (4th Cir.1999).

We apply a two-part test in determining whether a law imposes punishment for ex post facto purposes:

The Court first asks whether the legislature's intent, as discerned from the structure and design of the statute along with any declared legislative intent, was to impose a punishment or merely to enact a civil or regulatory law.

Second, even if the legislature did not intend to impose a punishment, a law still may be said to do so if the sanction or disability that it imposes is "so punitive in fact" that the law "may not legitimately be viewed as civil in nature." A defendant faces a "heavy burden" in making a showing of such a punitive effect and can succeed only on the "clearest proof."

Id. (citations omitted) (quoting United States v. Ursery, 518 U.S. 267, 288, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996); Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). Our analysis relating to the second part of the test "focuses upon whether the sanction or disability that the law imposes `may rationally be connected' to the legislature's non-punitive intent, or rather `appears excessive' in light of that intent." Id. (citing United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). We hold that neither the DNA testing requirement nor the requirement that the defendants pay the $250 fee are penal in nature.

We note that two South Carolina Court of Appeals decisions have already held that the DNA-sample requirement is not penal in nature. See Sanders v. South Carolina Dep't of Corr., 379 S.C. 411, 665 S.E.2d 231 (S.C.Ct.App.2008); Cannon v. South Carolina Dep't of Prob., Parole & Pardon Servs., 361 S.C. 425, 604 S.E.2d 709 (2004), rev'd on other grounds, 371 S.C. 581, 641 S.E.2d 429 (2007). In Cannon, the South Carolina Court of Appeals held that "the legislature's intent [in requiring the production of the samples] appears to have been to protect the public, and not to punish those individuals who commit or have committed the specified crimes." Cannon, 604 S.E.2d at 714. The court also concluded that the provision was not so punitive in effect that the legislature's intention would be negated. See id. Thus, it held that the DNA-sample requirement did not violate the Ex Post Facto Clause. See id. The court reaffirmed its holding in Sanders. See Sanders, 665 S.E.2d at 236-37.

We agree with these decisions — the correctness of which Eubanks does not challenge. The Act provides that its purpose is to allow SLED to build up the state DNA database by "develop[ing] DNA profiles on samples for law enforcement purposes and for humanitarian and nonlaw enforcement purposes, as provided for in Section 23-3-640(B)." S.C.Code Ann. § 23-3-610 (2009). Section 23-3-640(B) provides that DNA profiles may be used

(1) to develop a convicted offender database to identify suspects in otherwise nonsuspect cases;

(2) to develop a population database when personal identifying information is removed;

(3) to support identification research and protocol development of forensic DNA analysis methods;

(4) to generate investigative leads in criminal investigations;

(5) for quality control or quality assurance purposes, or both;

(6) to assist in the recovery and identification of human remains from mass disasters;

(7) for other humanitarian purposes including identification of missing persons.

S.C.Code Ann. § 23-3-640(B) (2009). These purposes are not punitive. See Jones v. Murray, 962 F.2d 302, 309 (4th Cir.1992) (concluding that Virginia statute requiring that incarcerated felons provide blood samples was not punitive when its purpose was to establish a data bank to aid future law enforcement). Moreover, the Act is codified in Title 23 of the South Carolina Code, which deals with law enforcement and public policy, rather than in Title 16, which addresses crimes and punishments. See Smith v. Doe, 538 U.S. 84, 94, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (explaining that the manner of an enactment's codification is "probative of the legislature's intent" regarding whether the act is civil or penal for ex post facto purposes). And, the DNA-sample requirement is certainly not "so punitive in fact" that it cannot be considered civil in nature.

The requirement that those providing the samples pay a $250 processing fee also is not punitive in nature.² See Taylor v. Rhode Island, 101 F.3d 780, 783-84 (1st Cir.1996) (holding that $15 monthly fee upon prisoners to defray the costs of their imprisonment was not punitive and thus not ex...