[JURIST] The US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] Thursday that a South Carolina law [SC Code §§ 23-3-600 et seq. text] requiring convicted first degree sex offenders to submit to a DNA test and pay $250 in processing fees prior to their release does not violate the ex post facto clause [text] of the Constitution. Anthony Eubanks, convicted of criminal sexual conduct in the first degree in April 1995, brought the action against the South Carolina Department of corrections, challenging the constitutionality of the provisions, which took effect in July 1995. In a narrowly tailored ruling, a three-judge panel upheld the district court's grant of summary judgment against Eubanks, holding that the state DNA Identification Act did not violate the ex post facto clause because DNA gathering was a regulatory, not punitive function. The court also held that the $250 fee was a relatively small sum suggesting that it "was not intended to have a significant retributive or deterrent" function. The court was more troubled by a provision that allowed South Carolina to garnish prisoners' wages to pay the $250 fee but avoided ruling on the issue as the appellant had not brought a due process claim. Finally, the court found that the statutory requirement that the prisoner must pay the $250 fee before he is paroled or released is unenforceable against Eubanks, as this provision is severable from the rest of the statute.

This case is the third instance that a court has held that the South Carolina DNA statute does not violate the ex post facto clause. Two South Carolina Court of Appeals rulings previously held that the law was constitutional, including one case decided [opinion] in June. Federal DNA collection laws have also withstood recent constitutional challenges. In 2007, the US Court of Appeals for the Ninth Circuit upheld [JURIST report] an amendment to the DNA Backlog Elimination Act [JURIST report] that required all felons in federal prison to submit DNA to a national database available to police departments throughout the country. In 2005, the US Court of Appeals for the Third Circuit upheld the constitutionality of an FBI DNA database, and the New Jersey Court of Appeals upheld a state DNA database for convicted criminals [JURIST reports].