Dial v. Vaughn

DIAL, Petitioner, Ertle VAUGHN, Superinten

Mr. Donald T.

dent of the Correctional Institu State Graterford; Fisher, Mike At

tion

torney of the Commonwealth General Pennsylvania Police, Respondents.

State Pennsylvania. Court of on Briefs Sept.

Submitted May

Decided appearance petitioner.

No entered for Ressler, AG, Deputy Joel M. Senior Harrisburg, respondent. COLINS, Judge,

Before President SMITH, J., DOYLE, J., McGINLEY, J., PELLEGRINI, J., FRIEDMAN, J. and LEADBETTER, J.

LEADBETTER, Judge.

By original our petition under Dial, jurisdiction,1 Ertle an inmate Gra SCI, challenges the constitutionali terford submit a ty requirement that he petition Dial’s amended for a writ of habeas view. corpus petition has been treated as a for re- P.S. 7651.302. The iden- testing pursuant 7651.102 and system DNA Detection Sexual tification DNA data from and Violent contains (Act).2 offenses, felony Offenders Act This sex is an issue of convicted of murder, impression. first in- stalking, Dial contends that harassment Act, by retroactively adding decent 7651.306. Sec- a condition of assault. 35 parole, separation require- violates the doctrine of tion 306 of the Act establishes of power, guilty his ments for of plea,3 invalidates and the submission violates the prohibitions specified from convicted of the 306(b) the provides constitutions of crimes. as and the Section follows: United States and the fourth amendment (b) Conviction before effective date. of the United States Constitution. Dial - A has been person who convicted or avers that during his confinement at Gra- adjudicated felony for a delinquent sex terford, entry following guilty his of a plea offense or other offense before offense, to an unspecified sex a sample of the effective this section date of and who his blood was taken for DNA testing pur- serving is still of confinement in term suant to Section of the 35 P.S. connection therewith on the effective 7651.306(b). He seeks the removal of date of shall not this section be released his DNA information from the data bank manner to the expiration injunction against and an further DNA his maximum of confinement un- term aas condition of his release on less and until a has been parole. withdrawn. Respondents, Vaughn, Donald The Commonwealth first demurs Superintendent Graterford, the Com to Dial’s claim Act deprives that the him of Attorney monwealth General and the State eligibility consequence for and in Police, (collectively referred to as Com affects the of his duration incarceration in monwealth) preliminary objections filed in violation of the of separation doctrine the nature of demurrers claims that powers. question There is no that final the Act separation powers violates the judgments judiciary of the are inviolable doctrine an ex constitutes and a final judgment sentence law. In deciding preliminary objections, be subsequent disturbed legislative we accept well-pleaded as true the facts change. v. Sutley, that are material relevant petition 256, 263, 378 A.2d 784-785 er’s claim. Board Dial v. Probation not, however, This preclude leg rule does (Pa.Cmwlth. Parole, 706 A.2d changes islative enactment the man 1998). We accept need not as true conclu ner of executing Sutley, the sentence. In law, sions of unwarranted inferences from the court explained: facts, argumentative allegations expres legal sentence is the [T]he maximum sions of opinion. Id. being sentence. The reason that while general, Pennsylvania’s DNA Act es- the minimum sentence determines pa- tablishes process eligibility, an administrative role maximum sets forth the implementation period identification of time the state intends system investigations as a tool in to exercise its control over the criminal offender judicial for deterrence recidivist crime. 35 for his errant behavior. The guilty plea sentencing May following §§ 2. Act of P.L. is to file 101- with court, §§ 7651.101-7651.1102. accepted plea, trial petition plea. to withdraw Common- injunctive petition 3. The instant and de- Porta, Pa.Super. wealth v. challenging claratory relief the constitutional- petition or a convic- ity proper of the DNA Act is not forum pursuant to 42 tion relief Pa.C.S. 9541- collaterally validity which to attack plea. proper procedure attacking process the determination of the istrative for identification and Dial discretion is person challenges of control over the subsection that period particular offender in view of the nature of the promotes prisoner cooperation with the crime, of the defendant background process. provision identification No pertinent and the other considerations judgment Act alters the of sentence ren- for such a decision. It is this exercise of sentencing dered court. For this the rule of the “inviolabil- discretion that reason, Dial is unable to maintain a claim ity judgment” protect. of final seeks to the doctrine of sepa- Act violates institution which the sentence Accordingly, the Com- powers. ration of served, objects sought to be to be objection in the preliminary monwealth’s accomplished during period this of con- nature of a demurrer to this claim is sus- penological trol and all the other consid- tained. primarily judicial erations are not func- Next, the Commonwealth de tions. that murs to Dial’s claim subsection (citations 268, Id. at 378 A.2d at omit- 786 7651.306(b), an 35 effects ted). post ex enhancement of his sentence facto requirement The that Dial submit 1, in violation of Article Section 10 of the to pre-release withdrawal of a blood sam 1, Article United States Constitution and ple for DNA alter his Pennsylvania Section 17 of the Constitu maximum sentence. Nor does Act al facto transgresses post tion. A law ex parole eligibility ter Dial’s date. Once eli where, first, the law is prohibition gibility by has been achieved incarceration second, it alters the defi retrospective and time, prescribed for the minimum actual nition of criminal conduct or increases parole may depend release on on full com crime is penalty by punishable. with pliance variety rules and Morales, Dep’t Corrections v. California administrative requirements. The Act de 1597, 499, L.Ed.2d 514 U.S. 115 S.Ct. 131 fines an administrative requirement (1995). 588 Del v. Work See also Valle must be satisfied to release. This (Penn Appeal men’s Bd. Compensation requirement is similar to the requirement 1211, Educ.), sylvania 687 A.2d Dep’t of acquisition storage of other convict (Pa.Cmwlth.1997).4 ex 1212 There is no in pho identification records the form of legislation facto if is not post violation tos, fingerprints physical description nature, in Mazur penal Van Doren v. compiled at the time of arrest. See 18 (Pa.Cmwlth.1997); kiewicz, 695 A.2d 967 27, Pa.C.S. April 9112 and the Act of Kline, 872 Commonwealth v. 1927, 414, amended, P.L. as 694, denied, 552 Pa. (Pa.Super.1997), alloc. power parole 2171-2177. The is an (1998), merely proce is 716 A.2d 1248 but Sutley, administrative function. 474 Pa. at Askari, 1045, dural, F.Supp. v. 608 U.S. 266, quoting 378 A.2d at 785 Common (E.D.Pa.1985). 1048 Cain, 581,

wealth ex rel. Banks v. 588-89, (1942). 897, 28 A2d 901 In the argues The Commonwealth case, instant penal the Act establishes an admin- is not testing requirement blood Valle, court, articulating penalty In See Del our or the was enhanced. California 499, Morales, law, U.S. post Dep’t elements of an ex cited 514 Crowell Corrections Commission, 3, 1597, (3d L.Ed.2d 588 v. U.S. Parole 724 F.2d 1406 n. 115 S.Ct. 131 506 (1995). Cir.1984) specifics premise law ex believe the focus that a is We vague disadvantage the better operates retroactively facto if it and results in rather than therefore, and, clarify disadvantage approach "dis new to the offender. After the Supreme Young advantage” in Del Valle is the Court’s decision in Collins v. referred to blood, 37, 2715, in in the of crime or 497 U.S. alteration definition 111 Mathis, (1990), punishment. Lynce inquiry L.Ed.2d 30 crease in See became more 441, 891, required L.Ed.2d focused and a determination of 519 U.S. 137 (1997). changed whether the definition of the crime therefore cannot we believe denial of offend the Nor do the Act’s comply for refusal with agree. clause. We is ex requirements collection evidence, non-penal because there no guided decision facto. We are this or purpose design, its its intent to n the United States Court of opinion of punish requirements so harsh as to Appeals for the Fourth Circuit Jones v. objectively constitute punishment. E.B. v. th(4 Cir.), Murray, F.2d 302 cert. de Vemiero, (3d 119 F.3d 1088-89 Cir. nied, S.Ct. - denied, 1996), -, cert. U.S. (1992).5 L.Ed.2d the Com 1039, 140 Virginia a DNA de monwealth of enacted collection blood for identification and tection act similar to the is, establishment DNA data bank like statute, statute.6 Pursuant the Vir fingerprinting and photographing, a non- ginia of Corrections estab Department penal, administrative requirement. procedures lished which blood th Peters, (7 Gilbert v. 55 F.3d would be from falling drawn inmates with Cir.1995). See also v. Oregon, Rise 59 in the the statute. The scope depart th(9 Cir.1995), F.3d cert. de- every required custody ment felon in on or nied, 134 after the date to provide relevant (1996); Erickson, v. Kruger sample prior to individuals’ discretion 583, 875 (D.Minn.1995), F.Supp. 589 af- ary parole eligibility thirty days date or th(8 firmed, Cir.1996). 77 F.3d 1071 prior mandatory to date if the parole Moreover, the blood reasonable date discretionary passed. had Six in because it constitutes a limited search in- regula mates the statute and challenged intrusion, volving minor Skinner v. Rail- grounds tions on the Ass’n, way Labor amendment, Executives’ 489 U.S. post violated the fourth the ex 602, 625, 109 S.Ct. facto 103 L.Ed.2d clause and the fourteenth amend 639 (1989), ment due clause. process on with diminished expec- Wolfish, tations privacy, Bell v. 441 U.S. claim, respect With 520, 559-60, 60 L.Ed.2d 447 prohibition the court in held that the Jones (1979), purpose improved law against non-eompliant in- the release enforcement, Murray, Jones v. 962 F.2d at mandatory mates who had reached their parole date7 an ex enhance- was 1, 1990, July 5. DNA ny custody identification have also statutes with- who is in after scrutiny stood prior constitutional in the Ninth provide sample Cir shall blood to his Cir.1995), cuit, (9th Oregon, Rise v. 59 F.3d 1556 release. denied, rt. ce 1554, (1996) (holding 134 L.Ed.2d 656 Virginia Ore DNA blood 7.At the time enacted its gon statute not in Fourth violation of Amend testing program, §§ Va.Code 19.2-310.2- Clause), 19.2-310.7, ment or Ex Post Facto and in the mandatory parole there existed a Circuit, Romer, Boling Tenth v. 101 F.3d 1336 system pursuant to Va.Code 53.1-159 th (10 Cir.1996) (holding Colorado statute not provided as follows: Amendment, violation Fourth Fifth Every person who and com- is sentenced interests); process Amendment or due Common- mitted under laws of the C Peters, (10th 940 Schlicher v. 103 F.3d ir. Department Corrections wealth to the 1996) (holding not Kansas statute in violation Virgi- parole ... shall be released on Amendment). of Fourth prior nia six to his Parole Board months through 6. See Va.Code. 19.2-310.2 19.2- discharge. date of final provided perti- 310.7. Section 19.2-310.2 mandatory Pennsylvania has not enacted part, nent as follows: Pennsylvania parole parole statute and July sample Pennsylvania discretionary. After shall Weaverv. Bd. blood Parole, (Pa. prior custody. be taken to 766 release from Probation and Cmwlth.1997); Notwithstanding provisions Pennsylvania Reider Bd. of 53.1— Parole, mandatory [the release re- Probation and Pa.Cmwlth. quirement], any person convicted of a felo- 514 A.2d self, original punishment ment of the terms of sentence. nor the infliction origi- section 306 of the within the terms of the prisoner’s beyond Act does not limit release the man- of the re- nal sentence for a violation facto, (citations datory release date established under the quirement, is ex post omitted). original terms of the sentence. Pennsylvania Act does not increase the F.2d at 309. Accord Murray, Jones v. punishment measure of attached to the Gainer, Ill.2d 204 Ill.Dec. Doe v. crime at the time of its commission and (1994), denied, 652, 642 ceri. N.E.2d thereby avoids the defect in constitutional 130 L.Ed.2d Virginia statute. (1995). Additionally, the court noted mandatory parole

Where the date had punishment that “whatever or disadvan reached, yet not been con- the Jones court results, not tage imposed reason of non-compliant cluded that retention of in- conduct that before enactment place took mates was not an ex law since post facto statute, retrospec so toas become that retention did exceed terms of tive, occurred after but from conduct that the prisoners’ original sentence. The with rea refusing comply enactment in to court reasoned that who refused n. 3. Ac regulation.” sonable provide Peters, F.3d at 239. cord Gilbert administratively punished could be statute portion Virginia Like that punishment such would not be ex pass muster found constitutional facto. The court stated: Pennsylvania DNA Murray, Jones v.

The Ex Post pre- Facto Clause does not imposes punishment an administrative adopt- vent administrators from ad non-compliance with a reasonable ing enforcing regulations reasonable enacted regulation ministrative good prison are consistent with ad- non-compliance. the act of ministration, safety efficiency.... and Dial as Finally, petition, in his location, [C]hanges prisoner’s in a var- under the testing program serts that the routine, daily iations of in changes Amendment DNA Act violates the Fourth conditions of confinement (including search prohibition unreasonable against segregation), administrative and deni- Commonwealth, has not and seizure. The - privileges every als of matters which to this objection preliminary asserted a anticipate can are contem- claim. our determination original pris- his sentence to plated regulation Act is a valid administrative - necessarily pris- on are functions of upon is our conclusion dependent management on that must be left to scrutiny. Act fourth amendment passes prison the broad discretion of adminis-

trators. obtaining a question, Without search and is a precisely It is because reasonable re reasonableness regulations, subsequent punishment subject and seizure to the thereof, the fourth are under contemplated quirement for infractions established California, 384 every as of the sentence of amendment. part prison- Schmerber v. er, 757, 767, 16 L.Ed.2d they do not constitute additional U.S. situations, (1966). limited punishment and are not classified as ex 908 In some law en Moreover, the normal prisoner’s special beyond facto. since a needs the warrant may embrace make original sentence forcement needs impracti requirement over an- cause right regulations probable to one set of amendments, of other, too, fourth permit fall cable and a determination reasonable upon based every sentence of amendment reasonableness anticipated within the in privacy balancing governmental inmate. therefore conclude that nei- of We Wisconsin, blood-testing requirement, ther it- terests. [the] Griffin law, 709 as a is unable petitioner 97 L.Ed.2d matter theory espoused in his prevail In the context of situation Dial’s inmate, petition, petition as a convicted the reasonableness amended the amended may of the search be even established dismissed. showing probable

absent a cause suspicion. Wolfish, Bell v. reasonable ORDER court, in U.S. at 99 S.Ct. 1861. The NOW, day May, deciding AND this 20th Wolfish, Bell stated search, objections to the amended preliminary reasonableness an inmate petition hereby sustained “Courts must consider the of the review are scope intrusion, petition hereby and the dismissed for particular in which it manner conducted, upon failure state a claim which relief justification initiating it, granted. place and the be it is conducted.” at 99 S.Ct. 1861. FRIEDMAN, Judge, dissenting. case,

In the blood-testing instant subjects a target population of respectfully I Unlike ma- dissent. convicted inmates with ex- privacy reduced jority, provisions I believe that the Bell, 559-60, pectations, 441 U.S. at DNA Detection of Sexual Violent Of- relatively S.Ct. to a minimal intru- (DNA Act)1 Act fenders violate the sepa- sion, Skinner, 489 U.S. at doctrine, powers ration of the ex 1402; Schmerber, 384 U.S. at Pennsyl- clauses United States and 1826, in furtherance the Common- vania Constitutipns Fourth wealth’s need to an maintain identification States Amendment United Constitu- system to slight deter recidivism. The tion. intrusion occasioned withdrawal blood is outweighed by public the special Separation I. of Powers maintaining interest an identification majority holds that the DNA Act data bank. Oregon, See Rise v. 59 F.3d powers does not violate the separation (holding creat- Oregon statute because doctrine does not ing DNA database not violation 4.) I (Majority op. alter Dial’s sentence. Fourth and citing Amendment Brown v. disagree. Texas, 50-51, 47, 2637, 443 U.S. 61 (1979) L.Ed.2d application “spe- for V, Article section 1 of the test) cial needs” balancing v. Jones “judicial provides Constitution Murray, 962 F.2d at 306 (applying “special power” of the Commonwealth shall be needs” test balancing determine that judicial system. vested in the unified This sample Virginia collection under judicial power means that “[t]he whole DNA identification statute reason- was vested in the Commonwealth is courts. able). The program established fragment belongs to the legisla- Not a of it is, face, on appli- its evenhanded in its Young ture.” v. Board Commonwealth cation and in reasonable the manner in 432, Parole, 428, 487 Pa. Probation which it is conducted. Petitioner has not 843, (1979) (quoting A.2d Com- any made tending averments to demon- v. Halloway, monwealth ex rel. Johnson strate otherwise. added). (1862)) (emphasis 42 Pa. Moreover, a Accordingly, preliminary objections sentencing power “[t]he judicial to the petition recognized pow- amended for review are well facet of that, In at at 845. light sustained. our conclusion er.” May legislative 1. Act of to enact the laws P.L. 2. It is function judicial it govern sentencing, but is a §§ 7651.101-7651.1102. appropriate actually impose an function law, 306(b) parole Under federal eligibility is Section of the DNA Act states part prisoner’s sentence. Warden that a person serving a term of confine- Marrero, 41 ment for specified the' offenses “shall not (1974); see also Jones v. Mur be released in manner th(4 Cir.), denied, ray, 962 F.2d 302 cert. expiration of his maximum term of confine- 121 L.Ed.2d ment unless and until a DNA has (stating parole eligibility is been withdrawn.” This means that such a facet of the imposed). By sentence es prisoners who refuse to submit to DNA tablishing maximum min sentence and a testing may parole. not be released on imum sentence at sentencing, the time of 7651.306(e). Thus, effect, See 35 P.S. the district judge “determines when the legislature imposed has sen- different offender will eligible become for consider tence, a sentence parole, prison- without Warden, ation parole.”3 for 417 U.S. at ers who refuse to testing.6 submit to DNA 659, 94 S.Ct. 2532. Because legislature has re-sentenced Likewise, Pennsylvania, the sentenc- these to serve a term of confine- ing judge parole eligibility establishes parole, ment without the legislature has the time of sentencing judge when the usurped judicial sentencing function establishes a maximum and a minimum and powers violated the doc- separation pursuant sentence to the Sentencing trine.7 Code.4 legislature, through result, 306(b) reaching a contrary major- its enactment of section of the DNA Act,5 ity relies on completely negated Sutley, has Commonwealth v. the minimum sentence, (1977), Pa. parole eligibility, propo- for 378 A.2d 780 for the every prisoner sition that prisoner’s legal who has been sentence convicted of an offense the DNA Act and who the maximum majori- sentence. The refuses to concludes, submit to DNA testing. ty Sutley, based on given sentence in a case. See imprisonment until the minimum term of has Sutley, 9717(b) 378 A.2d 780 been served.” 42 Pa.C.S. 9718(b). However, pursuant to section 306(b) law, generally, parole Under federal an offender shall not be eligible granted becomes serving after one- such offenses until the minimum Warden; third of his imprisonment sentence. See term of see also has been served and 4208(a). 18 U.S.C. until the has submitted to DNA test- ing. law, By operation the maximum sentence sentence, establishes the minimum when an that, point Pennsylvania, 7.I out a sentence eligible parole. offender is 9756(b) See section imposed must be amount of minimum Code, Sentencing of the 42 Pa.C.S. gravity time that is consistent with the (stating that the minimum sentence offense, the rehabilitative needs of the defen- shall not exceed one-half of the maximum protection public. dant and the Sec- sentence); see also section 21 of the Parole 9721(b) Code, Sentencing tion 42 Pa. Act, 6, 1941, 861, August Act of P.L. as 9721(b); Corson, § C.S. Commonwealth v. amended, § (stating 61 P.S. 331.21 51, (1982). Pa.Super. 444 A.2d 170 may only grant parole Parole Board after the case, sentencing judge each the considers sentence). expiration of the minimum appropriate these factors and determines an sentencing sentence for the offender. If the 7651.306(b). 5. 35 P.S. judge determines that an offender should be- eligible serving come for after a mini- 306(b) sentence, I note that legislature section of the DNA Act is mum the cannot inter- Indeed, very in conflict with provisions judicial some of the of fere with that determination. Sentencing govern the Code that the Supreme offenses the U.S. Court has stated: "[I]t specified example, in the seriously argued sentencing DNA Act. For sec- could not be Code, tions Sentencing regard 9717 and pe- decisions are made without mandatory which establish spend prison sentences for sex- riod of time a defendant must against elderly ual offenses per- becoming eligible parole." infant before den, for War- sons, 658, granted state that: “Parole shall not be at 94 S.Ct. 2532. Graham, not separation DNA Act does violate the of affected the law. Weaver powers doctrine because it does not alter a 450 U.S. L.Ed.2d 17 (1981). prisoner’s (Majority Here, maximum sentence. the question is whether the 4.) However, op. at the Su- retroactively DNA Act the pun increases that, preme Sutley stated Court al- ishment for the crimes in the though a prisoner’s legal sentence is the DNA Act. sentence, maximum a a altering pris- law majority aspects The examines of two “might oner’s minimum sentence consti- for possible DNA Act facto tute an usurpation judicial unwarranted of (1) itself; violations: the DNA authority.”8 Id. at 269 n. 378 A.2d at (2) the of parole refusing denial (citing 786 n. 8 Commonwealth ex rel. submit testing. to DNA In the first in- Cain,

Banks v. 345 Pa. 28 A.2d 897 stance, majority concludes that (1942); see also Commonwealth testing itself involves no at punishment all. Henderson, 4-5.) (Majority op. agree. I cannot (1978)). Thus, would rely I not Sutley Act, to conclude that the DNA Act, Section 307 which goes beyond altering far a prison- 7651.307, governs drawing of DNA sentence, er’s minimum not does violate 307(c) samples10 prisoners. from Section separation powers doctrine. 7651.307(c) of the DNA added), (emphasis provides as follows: II. Ex Post Facto Violation “Duly law authorized enforcement and cor- majority also holds that the DNA rections personnel may employ reasonable Act does not violate ex post in cases where an individual refuses force clauses of the United and Pennsyl- States to submit to DNA testing authorized under vania (Majority op. Constitutions.9 at 4- act, this and no such employee shall be 7.) Again, disagree. I civilly criminally or liable the use of The ex clause “aimed at reasonable force.”11 laws that ‘retroactively alter the definition Thus, section while crimes or increase punishment ” Act suggests prisoner may that a refuse criminal acts.’ Dep’t Cor California Morales, her rections v. and serve his or maxi- 307(c) confinement, mum term of section two present critical elements be Act authorizes officials to must establish a prisoner law use “reasonable force” violates the ex when (1) facto prohibition: testing. majority the law must be refuses DNA ret is, rospective, 307(c) it must hot apply to events address the use of section or enactment; occurring before its “reasonable force” of a blood taking the law must disadvantage testing. tissue for DNA Does sample Sutley 8. The implications court declined to address and does address the legislative whether a interference with taking prisoner. sample" "tissue from minimum sentence of a violates the separation powers Sutley, doctrine. rule, general 11.As use authorities 474 Pa. at 269 n. 378 A.2d at 786 n. 8. necessary "that force reasonable legitimate purpose." effectuate their Com I, 9. Article section 10 of the United States French, 531 611 monwealth v. Pa. A.2d I, Constitution and Article of section 17 the (J. (1992) McDermott, concurring); Pennsylvania prohibit pas- Constitution the 509(5) see and the Crimes sections 504 sage any post ex facto law. 509(5). Code, §§ 504 The 18 Pa.C.S. and violence, “Power, word com sample” A "force" means: 10. "DNA is a "blood or tissue Act, pulsion, against sample.” upon or constraint exerted or Section 103 of the DNA Dictionary majority person....” a Black's 7651.103. The seems to Law as- ’ th(6 ed.1990). only sample' sume that a is a blood DNA Here, 307(c) rele- S.Ct. the beat section mean that officials can U.S. at 306(b) of the DNA a until he to DNA is section prisoner provision or she submits vant 7651.306(b), is enti- testing? Does it that officials can mean physically restrain effective date.” strap prison- or down “Conviction before tled in order to that section sample? er collect a DNA alone indicates This title threaten, 306(b) Does it mean officials can DNA is retroactive of the Act indeed, nature; provision intimidate or terrorize in order it the prisoner shows that to obtain a DNA Does section sample? prisoners to with convictions applies before 307(c) mean that suspend officials can date. the effective prisoner’s privileges place prisoner nature of section retrospective housing sub- restrictive until the equally apparent DNA Act DNA testing? mits to See 37 Pa.Code does not provision from the fact that the suspension privi- 93.10 (authorizing prisoners. provision ap- all apply to housing leges placement in restrictive who category prisoners to a plies misconduct). discipline as means of If for one previously have been convicted the DNA Act of these authorizes punish- offenses. coercion, means of DNA then the refusing to to DNA test- ment for submit punishment. involves process past parole, the denial of is based ing, respect to parole

With the denial were prisoners conduct for which certain refusing testing, to submit to DNA convicted. majority acknowledges punish- that this in- retroactively the DNA Because Act 6.) However, (Majority op. ment. at prison- certain punishment creases the majority concludes punishment ers, Act violates I conclude retrospective is imposed not because it United ex facto clauses of the non-compliance “for with a reasonable ad- Pennsylvania States Constitution and the regulation

ministrative to enacted Constitution.14 (Majority non-compliance.”13 the act of 6.) at III. Fourth Amendment op. analysis retroactivity concludes proper Finally, majority A violate the provi- examines the relevant does not issue whether against “applies prisoners prohibition sion of the to Fourth Amendment (Majori- for acts before the search seizure. convicted committed unreasonable 7.) Weaver, to ty op. effective date.” Prior its discussion provision’s that, majority Virginia, prisoners purpose, apply five it to all 12. The indicates would prisoners administratively just may punish not to sex offenders and prison officials speci- other who have been convicted of the prisoners provide who a blood sam- refuse 8.) offenses. testing. (Majority fied ple op. at It is for DNA majority clear whether the believes adopted regulations were I further note that prison officials in do like- pursuant Act at Pa.Code .37 wise. §§ er, 1996. Howev- 59.1-59.21 on October subject regulations of our these are not the the DNA Act is not an adminis- I note that Indeed, majority inquiry does not here. regulation. Certainly, the DNA Act trative identify regulations. or discuss these punish administra- allows officials to tively to submit Mathis, certain who refuse Lynce 14. Cf. testing. is no con- there (stating that 137 L.Ed.2d 63 whatsoever between the creation nection provisions im retroactive alteration of clause); safe and efficient DNA data bank and the plicates see also Warden, (stat Pennsylvania’s prisons. operation of 417 U.S. at Jones, (J. Mumaghan, concurring eligibility dissent- ing repealing “parole that an act (creation ing) imprisoned of DNA bank unrelated to previously data available to offenders Moreover, clearly question penal purpose). present un any institutional would serious [a] clause_”). legitimate administra- der the ex DNA Act served a if the matter, majority acknowledges that conclude that the DNA Act involves a pre- the Commonwealth has not raised a minimal intrusion. liminary objection to Dial’s Fourth Amend- majority suggests The also that DNA 6.) (Majority ment claim. For op. at this finger- testing a minimal intrusion “like is reason, I would not Fourth address the 5.) However, printing.” (Majority op. However,

Amendment issue. do so I here Council of the Na- National Research agree because I cannot majority’s with the Sciences, Academy report tional in a conclusion. Technology in Sci- entitled “DNA Forensic ence,” is pointed out that DNA less “The Fourth prohibits only Amendment costly reliable fingerprinting, than more Wolfish, unreasonable searches.” Bell obtain, repre- more difficult to and it 441 U.S. greater sents a on an individual’s intrusion L.Ed.2d 447 The test reason- (cid:127)privacy fingerprinting. Sheryl than H. ableness each case a “requires balancing Love, Allowing Technology Note: New of the need for the particular search Erode A Constitutional Protections: against the of personal rights invasion that Fourth Challenge Amendment to Non- the search entails.” Id. at Prisoners, Testing Consensual DNA To determine the reasonableness of (1993) 1617,1645-46 (hereinaf- Vill. L.Rev. search, a courts must consider follow- Allowing Indeed, ter Technology). New (1) ing: scope the particular intru- once scientists are able to human map sion; (2) the manner in which it is conduct- DNA, samples everything DNA will reveal (3) ed; justification it; initiating for race, about person, including appearance (4) the place in which it is conducted. predisposition to disease.15 Id. majority does not potential consider this expansive intrusion a prisoner’s priva- into A.Scope of Intrusion cy from testing, ignore but I cannot it. majority cites Railway Skinner v. Association, Labor Executives’ Testing B.Manner 602,109 1402,108 S.Ct. 307(a) Section of the DNA P.S. California, Schmerber v. 7651.307(a), § indi- (1966), requires qualified 16 L.Ed.2d 908 viduals must draw the “in a proposition samples the withdrawal of However, medically approved blood from a manner.” person’s body for DNA test- “may ing employ involves a authorities reasonable force” relatively minimal intrusion. if a prisoner refuses to submit to DNA DNA Act not only authorizes 307(c). test, testing. P.S. As indicated but also the taking tissue above, I sample. do believe force 7651.103. In Schmer- ber, sub- reasonable when refuses to U.S. at mit testing. to DNA to the extent court held that “the Constitution does not con- forbid the authorizes force in States minor intrusions into an test, ducting the DNA conclude individual’s I body under stringently limited conducting manner of the DNA test conditions... the Constitution [but unreasonable. more forbid] substantial intrusions....” Because there nothing before us to indi- Testing C.Justification cate whether the taking of a tissue here, involves more justification substantial intrusion than As applicable taking of a blood I sample, cannot from individu- samples l(3)(vii). person’s years. I note that a will be See 37 Pa.Code 59.1 retained in the DNA data bank for at least 50 felony sex other See 85 P.S. prerelease program. als convicted offenses and 7651.306(e). any expectation other offenses is to establish Without conclusion of their maxi- DNA data bank assist law enforcement release before the terms, have no agencies investigations prisoners in criminal mum these will or to participate deter recidivist acts.16 85 P.S. 7651.102. reason to seek treatment justification prison- I find this unreasonable in rehabilitation These programs. several reasons. their maxi- likely complete ers-will most absolutely no mum terms with rehabilita- The first reason is that the DNA Act tion; they will commit the same crimes for makes an irrational distinction between incarcerated; law they were is no prisoners. different classes of There enforcement not have a DNA agencies will taking samples factual basis for from profile for them. the DNA Act es- particular group prisoners instead of testing program tablishes a DNA that ulti- prisoners. from all If the DNA data bank mately very purpose defeats the help identify can recidivists who have been statute. offenses, previously felony convicted sex

murder, harassment, stalking and indecent pro- The third reason is that the DNA assault, help then the DNA data bank can may files retained in the DNA data bank identify recidivists who have been convict- not even be admissible as evidence in arson, ed-previously kidnapping, burgla- Pennsylvania courts. In Commonwealth ry, robbery, theft and other crimes. In- Blasioli, 552 Pa. 713 A2d 1117 deed, burglars and thieves have a much (1998) (relying on higher recidivism than con- rate Crews, (1994)), 640 A.2d 395 victed of rape.17 It makes no sense to supreme our court stated that the restric- require DNA samples prisoners from who fragment length polymorphism tion likely are less to commit the same crime (RFLP) profiling of DNA is ad- method prison, after release from but not to re- missible as evidence in quire from prisoners who forth in courts under the standard set likely are more to commit same crime Frye v. States 293 F. 1013 United after prison. release from (D.C.Cir.1923). However, the court noted a newer developed

The second reason that the DNA scientists have analysis, polymerase of DNA nothing does to deter the recidivism of method (PCR) method, those which has prisoners who refuse chain reaction yet gained acceptance and elect to serve their maximum terms of not in the scientific thus, community and, confinement. who refuse to sub- not be admis- Prisoners would likely Frye.18 mit to DNA are to be the sible evidence under offenders, particular likely require hard-core the ones most Act does not the use may analysis creating to be These not method of DNA recidivists. Moreover, there is no parole, furlough, be released on or on and DNA data bank. show that participate in work release or evidence before us here to Crossroads, Hastings L.J. 717 The DNA Act indicates that other states ter at the (March 1998). recidivism rate for have enacted similar laws. See 35 P.S. The low n eighty than rape that other is no because more 7651.102. the fact doubt not, itself, acquain- involve per rape states have cent of cases similar laws all justify appre- rape it is easier the enactment of the DNAAct Penn- tance and because stranger. sylvania. than a See hend a known assailant Megan’s Law: Protec- Perspectives Critical Privacy, Hum. Rts. vs. 13 N.Y.L. Sch. tion I. leading study, In a social scientists found: (1) burglary the recidivism rate for was 31.9%; (2) larceny rate for was recidivism 33.5%; (3) drug all of the differ- the recidivism rate for of- 18.The court did not discuss 24.8%; Allowing analysis. fenses was the recidivism rate ent of DNA methods Park, Roger Technology. rape was Charac- New 7.7%. See C. I Accordingly, searches. DNA data unreasonable stored in the profiles DNA objections. preliminary under would overrule evidence bank would be admissible are not admis- Frye. profiles If the DNA evidence, justifica- then there is no

sible for the DNA data bank.

tion that, if the reason is even fourth Frye, under profiles

DNA are admissible identify profiles

DNA do not individuals accuracy. profiles

with 100% DNA probability evidence of a statistical provide James V. BURKE person that a has some connection with Technology. Allomng New crime. Pennsylvania, COMMONWEALTH profiles, each case involving OF TRANSPORTA DEPARTMENT to ex- there must be statistical evidence TION, OF LI BUREAU DRIVER plain significance profiles. CENSING, Appellant. However, like some DNA some profiles, under statistical evidence is not admissible Pennsylvania. Court of Blasioli, Frye. our court held supreme Briefs Feb. 1999. Submitted on for the first time that statistical evidence upon product based “the rule” is admissi- Decided June Frye. ble under DNA Act does not Aug. Reconsideration Denied require prosecutors use statistical evi- ex- product dence based on “the rule” to

plain DNA If the statis- profile evidence.

tical is not prosecutors evidence used Frye, pro-

admissible under then the DNA

file has no evidentiary value. If the value,

profile evidentiary has no then there

is no reason for the DNA data bank. Testing

D. Place search,

As place section

307(a) 7651.307(a), samples states that DNA

will be place drawn from case, place

of incarceration. In this

incarceration is Graterford State Correc- (SCI). However,

tional there is Institution

nothing that the facili- before us to show taking

ties at permit Graterford SCI medically approved evidence,

manner. such I cannot Without

conclude that DNA at Graterford

SCI constitutes a reasonable search. I con- foregoing,

Based on the would es- testing program

clude that the DNA

tablished the DNA Act violates prohibition against

Fourth Amendment

Case Details

Case Name: Dial v. Vaughn

Court Name: Commonwealth Court of Pennsylvania

Date Published: May 20, 1999

Citation: 733 A.2d 1

Court Abbreviation: Pa. Commw. Ct.