Appeal from the United States District Court for the District of South Carolina, at Charleston. R. Bryan Harwell, District Judge. (2:99-cv-05555-RBH; 2:99-cv-02195-MJP).
The opinion of the court was delivered by: Traxler, Circuit Judge
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.
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.
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).*fn1
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 ...