Miller v. U.S.Parole Comm'n
| Decision Date | 15 April 2003 |
| Docket Number | No. 02-4073-JAR.,02-4073-JAR. |
| Citation | 259 F.Supp.2d 1166 |
| Parties | Jeffrey J. MILLER and all others similarly situated, Plaintiffs, v. UNITED STATES PAROLE COMM'N, et al. Defendants. |
| Court | U.S. District Court — District of Kansas |
Marc A. Schultz, Topeka, KS, for Plaintiff.
D. Brad Bailey, Office of United States Attorney, Topeka, KS, for Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR PERMANENT INJUNTION AND DISMISSING ACTION
Plaintiff filed a complaint (Doc. 1) seeking to enjoin the Defendants from obtaining his DNA sample in compliance with 42 U.S.C. § 14135a, for inclusion in the Federal Bureau of Investigation's Combined DNA Index System ("CODIS") database. On May 15, 2002, this Court granted a Temporary Restraining Order (Doc. 5) in favor of the Plaintiff. On June 5, 2002, Plaintiff submitted a memorandum seeking permanent injunction (Doc. 6). The magistrate judge entered an ordering staying the matter pending a judgment on the merits of the complaint (Doc. 9). Because the Court concludes that the Patriot Act is constitutional, the Court denies Plaintiffs motion for a preliminary injunction and dismisses Plaintiffs Complaint.
Plaintiff brings this challenge while under the jurisdiction of the United States Parole Commission. Plaintiff was convicted of Kidnaping and Carjacking and sentenced to 20 years in prison on August 6, 1986. While Plaintiff was incarcerated, the parole system became extinct. With the implementation of the sentencing guidelines, federal prisoners no longer become eligible for parole. Prisoners serve out the sentence handed down by the court and then are placed on supervised release for a pre-determined amount of time. Plaintiff, and others convicted under the old system, are still released on discretionary parole. The Parole Commission still exists to monitor these individuals and the statutes, while repealed, remain in force as applied to those individuals. Plaintiff was released on parole in 1997, revoked and returned to prison in 1999 and re-released in 2000. Plaintiffs parole continues until March 26, 2006.
Two years before Plaintiff was convicted, Congress passed the Comprehensive Crime Control Act of 1994, which required that persons convicted of murder or sex offenses under federal and military law provide a DNA1 sample to be included in the Combined DNA Index System ("CDIS"), a national database. The database allows federal and state law enforcement officers to check evidence found at crime scenes of both past and future crimes, against offenders who have provided a sample. Nearly every state has a similar statute and samples collected by state entities are also included in CODIS.
Courts have reviewed a number of DNA collection statutes, and found them to not be penal in nature. Most recently, the Kansas Supreme Court found that its DNA collection law did not constitute a penalty but rather established a process for assisting the identification and detection of crimes.2 That court held that "[s]tate action in furtherance of achieving those goals is not a penalty or a punishment." 3
Other courts have held the same.4
In 2001, the law was amended by the passage of the USA Patriot Act. The Patriot Act extended the DNA sample requirement to other qualifying federal and military felonies, including Kidnaping. Thus, while Plaintiff was on parole, his parole officer advised him that the conditions of his parole now required him to provide a sample of his DNA for inclusion in the database. In addition to adding other qualifying felonies, the Patriot Act also made it a misdemeanor for persons convicted of qualifying felonies to fail to provide a DNA sample. Plaintiff refused to give a sample and filed this lawsuit.
Plaintiff alleges that the relevant provisions of the Patriot Act and the Comprehensive Crime Control Act of 1994 are a violation of his rights under the Fourth Amendment, an unconstitutional taking without due process, a violation of his right to privacy and violative of the ex post facto clause of the Constitution. Plaintiff also seeks to have this action certified as a class action. Each of Plaintiffs claims will be addressed in turn.
In his complaint, Plaintiff alleges that requiring him to give a sample of his DNA for the database is an unconstitutional taking without due process. While this argument appears to be abandoned in Plaintiffs briefs, the Court will nevertheless give it full attention. The Tenth Circuit addressed this argument in Boling v. Romer5 In Boling, the plaintiff challenged a Colorado statute requiring all inmates convicted of sexual offenses to provide a blood sample before their release from prison. The Boling court found that no hearing was necessary before taking a blood sample.6 The court reasoned that there would be little to contest in the way of due process when the only requirement for giving a sample was conviction of a predicate offense.7 Additionally, even if Plaintiffs challenge is to the enactment of the law, rather than the method of the blood draw, his argument fails. When legislation affects a general class, the legislative process satisfies due process requirements.8
Furthermore, revocation of Plaintiffs parole for not providing a sample is not an unconstitutional taking without due process, because Plaintiff does not have a liberty interest in parole.9 Under the parole guidelines, he was eligible for parole after serving one-third of his sentence,10 but the determination to grant parole was at the discretion of the parole board. Plaintiff received a 20 year sentence for his crimes. At the discretion of the parole board, he was paroled after 11 years and six months, with the understanding that he would abide by all conditions of parole. Plaintiffs sentence of imprisonment does not expire until March of 2006. Because he has no constitutional liberty interest in early release, and the federal parole system only granted discretionary release, Plaintiff cannot claim an unconstitutional taking of a right to early release.
Plaintiff makes two arguments under the ex post facto clause. First, he argues that because the Patriot Act, which brought the crime of Kidnaping under the purview of the statute, was not enacted until 2001, 15 years after his conviction of Kidnaping, it violates the prohibition of ex post facto punishment. Second, Plaintiff argues that because refusing to comply with the law subjects him to punishment for a separate, misdemeanor offense, the ex post facto clause is implicated.
The ex post facto clause merely states that "[n]o State shall ... pass any ... ex post facto Law."11 The definition of an ex post facto lav? was set out in 1789 by Justice Chase:
Id. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.12
The purpose of the ex post facto clause is "to assure that legislative Acts give fair warning of the effect and permit individuals to rely on their meaning until explicitly changed."13 Despite some interpretations of Justice Chase's definition, the change must do more than merely disadvantage a defendant.14 It must be one of substance and not merely procedural.15
Plaintiff argues that this law implicates the ex post facto clause by inflicting a greater punishment for his conviction of Kidnaping than the punishment he faced at the time he committed the crime. Plaintiff argues that the punishment is unconstitutionally increased by making it a condition of his parole that he give a sample. As with any condition of his parole, failure to abide by the condition subjects Plaintiff to revocation and re-incarceration.
But, it is well settled that the conditions of parole can be changed at any time. This condition, mandating the giving of a DNA sample, is not itself penal in nature. Thus, it cannot be ex post facto.16 The mere fact that failure to comply with this condition subjects Plaintiff to revocation, does not implicate the ex post facto clause. "Revocation of parole is not a punishment for a new offense ... [f]or revocation purposes, the conduct simply triggers the execution of the conditions of the original sentence."17
In United States v. Reese,18 the court thoroughly examined the ex post facto ramifications of a change in the sentencing options available to the court upon revocation for a violation of a condition of supervised release. In Reese the defendant pled guilty to a drug offense. At the time of the sentencing, the court had the discretion to decide what prison term would ensue should the defendant ever be found using or possessing drugs during his period of supervised release.
After the defendant was sentenced to a term of imprisonment and a period of supervised release, a new statute was enacted. This new statute diminished the court's discretion in sentencing upon a revocation of supervised release, by establishing a minimum mandatory sentence of one third of the total supervised release time for anyone found possessing or using drugs on supervised release. Thus, when the defendant was revoked for testing positive for drug use, the court sentenced the defendant to the minimum mandatory term of imprisonment. The defendant appealed, arguing that the change violated the ex post facto clause and that if the judge would have had discretion, he may have received a shorter sentence for his supervised release violation.
In analyzing the defendant's arguments, the court found that it ...
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