Valérie B. Spalding, Assistant Attorney General
Criminal Division, Office of the Attorney General, North Carolina Department of Justice
This paper is about the enforcement of DNA statutes in the prison setting (1). It stems from one case, Sanders v. Coman (2), in which a convicted murderer challenged North Carolina's right to extract blood samples pursuant to the state's DNA legislation (3), by force if necessary, from imprisoned felons. The murderer lost, the State's legislation emerged constitutional, the prisons properly continue to extract blood samples with or without the inmates' cooperation, and the case stands as an encouraging precedent for other states.
This paper is divided into three parts: the first describes the drafting, passage, and implementation of North Carolina's DNA legislation; the second part summarizes the various attacks made on analogous statutes in other states; and the third discusses the recalcitrant North Carolina inmate's attack on the enforcement of that State's legislation. Apart from providing information and acting as an initial resource for other states should their legislation be subject to similar attacks, one hopes that this paper will perhaps also bolster efforts to enact such legislation in states where it presently does not exist.
NORTH CAROLINA'S DNA DATABASE AND DATABANK LEGISLATION: 1992-1993
The impetus in 1992 for drafting DNA legislation in North Carolina was, as one might expect, the endemic increase in violent crime against the person-especially homicides, rapes, and sexual assaults-which had occurred in the prior four years. The total number of violent crimes had jumped 32% during that period, from 32,257 in 1988 to 43,470 in 1991. Murders had increased 49%, from 511 in 1988 to 759 in 1991, and forcible rapes had increased 26%, from 1835 in 1988 to 2305 in 1991 (4). Although North Carolina's crime rise mirrored that of the United States as a whole, the state's violent crime rate was climbing faster than the national average. Indeed, in 1991, North Carolina was the sixteenth most dangerous state in which to live and was in eleventh place for the number of homicides per 100,000 residents (5). Some of the problem had to do with the fact that rapists are frequently recidivists (6), who receive little if any treatment while incarcerated. In addition, legislatively imposed caps on the state's prison population had resulted in violent offenders being returned to society at a higher rate than had previously been the case. Consequently, the state and local law enforcement agencies simply could not provide the additional manpower, equipment and other resources necessary to meet the increase in violent felonies (7).
The North Carolina Department of Justice, specifically the State Bureau of Investigation (SBI) and the State Attorney General, concluded that one way to approach the problem, and to reduce the high incidence of severe trauma and death visited on victims, was to apply for a federal grant to fund a state DNA Database Unit at the SBI. The primary purpose of the DNA database would be to offer information on criminals through the scientific analysis of evidence collected at crime scenes, both within the state and on a national level. The SBI already had a DNA Unit which possessed the technology to use DNA profiling to solve crimes in the same manner as the national Automated Fingerprint Identification System (AFIS); simply stated, the technology is the collection of known specimens, the placing of the profiles in a computer database, and the subsequent comparison of unknown profiles gleaned from the crime scene evidence with the known profiles (8). This technology would permit North Carolina to become a member of the national DNA database known as the Combined DNA Index System (CODIS) (9).
An extremely generous grant was successfully obtained through the auspices of the Governor's Crime Commission (10), and all that remained was to draft the necessary enabling legislation for the North Carolina General Assembly's consideration. Twenty-one other states (11) had already passed legislation of the type contemplated by the North Carolina Department of Justice, but the statutes lacked uniformity and at least one had demonstrated some constitutional infirmity (12) Fortunately, the Federal Bureau of Investigation had written some guidelines for use by state legislatures, state attorneys general, state police agencies, and other organizations engaged in drafting legislation to establish and operate state DNA identification databases (13) The guidelines included helpful information and advice on items such as terms and definitions, authority to establish a state DNA database, compatibility with CODIS, categories of offenses/offenders for inclusion in the state database, the collection of blood samples, conformance with the federal DNA Identification Act of 1991 (14) (now passed into law by the United States Congress, 15), privacy and civil liberties issues, and funding authorization. The two drafters (16) of North Carolina's statute benefited greatly from the FBI's guidelines, as well as from personal knowledge of Virginia's experience since passage of its statute and the issuance of two opinions on that statute from the Fourth Circuit Court of Appeals (17) Special care was taken not only to avoid potential constitutional problems in North Carolina's statute, but also to ensure that the practical problems engendered by the sudden deluge of thousands of blood samples would not overwhelm the SBI laboratory facilities and personnel. By January 1993, the bill was in final draft form, and ready to be introduced into the 1993 Special Crime Session of the North Carolina General Assembly.
In spite of some (inaccurate) media reports to the effect that House Bill 1050 would infringe upon various and sundry constitutional rights, the bill's sponsors (18) worked very hard to get it passed as written by both houses of the North Carolina General Assembly. They received support from the state's district attorneys and law enforcement agencies. The bill slowly wound its way through the legislative process from early spring into the summer. It suffered only one hitch. This came in the form of a last-minute attempt by a private DNA laboratory to amend the proposed legislation to allow private companies to take part in the collection and testing of blood samples. This attempt was turned aside by inserting a clause into the legislation permitting the SBI to contract out the typing analysis work to a qualified DNA laboratory that also met the SBI's guidelines (19) The bill was finally ratified and passed into law on 19 July 1993, together with the necessary fiscal appropriation.
North Carolina's DNA Database and Databank Act is unique in that it was the first in the nation to conform closely to the FBI's suggested legislative guidelines (20) The statute begins with a policy statement (21)-something that later turned out to be of vital importance when the statute was challenged in federal court. It also mandates that the SBI's laboratory procedures be compatible with the procedures specified by the FBI for CODIS (22). In essence, the statute provides that on or after 1 July 1994, a person convicted of any of the crimes listed in the statute shall have a DNA (blood) sample drawn upon intake to a jail or prison. Those individuals found guilty but not sentenced to a term of confinement shall have a blood sample drawn as a condition of sentence. Those individuals convicted and incarcerated prior to 1 July 1994 shall have a blood sample drawn prior to parole or release. The eighteen listed crimes include murder in the first and second degree; rape in the first and second degree; sexual offense in the first and second degree; malicious castrating and maiming; castration or maiming; malicious throwing of corrosive acid and alkali; malicious assault in secret manner; felonious assault with a deadly weapon with intent to kill; assault on a handicapped person; discharging a firearm into occupied property; assault with a firearm upon a law enforcement officer, a fireman, or EMS personnel; kidnapping with intent to do serious bodily harm; malicious use of explosive or incendiary; burning of a mobile home, manufactured-type house, or recreational trailer home (23); taking indecent liberties with children; armed robbery; stalking; common law robbery; and first degree arson (24). The statute then describes the reasons behind the tests to be performed upon the blood samples collected, the procedures to be followed in drawing the blood samples, and the procedures for conducting the DNA analysis of the blood samples (25). Another section specifically provides for who shall have access to the results of the DNA profiles stored in the state's database: local, state or federal law enforcement agencies, approved crime laboratories, and district attorneys in furtherance of a criminal investigation. No others have access unless they are "appropriate" parties and do so under valid court order. This section also provides for the creation of a separate population database (26) Finally, the statute provides for expungement, confidentiality, and penalties for unauthorized use of the databank (27) North Carolina's DNA Database and Databank Act now applies only to adults. Juveniles will come within the purview of the law when and if the General Assembly provides the appropriate funding for such an expansion of the program.
Although passed in 1993, North Carolina's statute did not come into effect until 1 July 1994, to allow the SBI, other law enforcement agencies, the Administrative Office of the Courts, the Parole Commission, the Attorney General, the Department of Correction, the Department of Prisons, the Sheriffs' Association, and other governmental agencies to coordinate their efforts in setting up the program. Although the North Carolina Department of Justice had been the primary moving force behind the legislation, let it be said immediately that unstinting cooperation was given and received from all the state agencies involved. All kinds of practical problems had to be solved. A few examples suffice to make the point: clear written instructions regarding the procedure for taking an inmate's blood and ensuring not only that it was in fact his blood but also that a proper chain of custody was preserved from the prison or jail to delivery to the SBI laboratory had to be disseminated to ensure uniformity throughout the prison and jail system; collection and packaging materials had to be designed and obtained; those prisoners about to be paroled had to be sorted out from a constantly transient prison population and tested first; forms for the superior court judges to fill-in had to be designed and approved; assistant district attorneys had to be alerted to ensure that newly convicted felons were properly ordered to have their blood drawn (28); sheriffs had to be alerted to ensure that probationers did not fall out of the system; and the SBI laboratory itself had to acquire space and equipment and hire and train special personnel for the huge job of analysis awaiting them. All of this was accomplished in good order. From 1 July 1994, when testing began, to 25 September 1995, the SBI laboratory received in excess of 16,000 blood samples from convicted felons covered by the statute, of which more than 2,600 have been analyzed using the RFLP (29) method of DNA testing, and of which more than 2,000 profiles have been uploaded to CODIS. The SBI is currently in the process of validating its PCR-based STR (30) system for use in databasing (and casework). This system is expected to come on line on 1 January 1996 (31).
CHALLENGES TO DNA DATABASE/DATABANK STATUES
The first challenge to a DNA statute came in Virginia. In Jones v. Murray (32), six inmates challenged the Virginia statute's constitutionality, contending (1) that it authorized the involuntary extraction of blood in violation of the Fourth Amendment prohibition against unreasonable searches and seizures, and (2) that it violated the ex post facto clause principally because it deferred the release of prisoners who had committed crimes prior to the statute's effective date until they gave a blood sample. The federal district court upheld the constitutionality of the statute against both attacks, and the inmates appealed to the Fourth Circuit Court of Appeals. This was, of course, a case of first impression (33)
The Fourth Circuit began by describing the technology involved in DNA profiling, and noting that Virginia's statute represented an attempt to address the problem of felony recidivism by "identifying and increasing the likelihood of convicting repeat offenders and by deterring those who might otherwise commit a second felony" (34). It went on to summarize the major provisions of Va. Code Ann. § 19.2-310.2.
The court then addressed the inmates' arguments against the implementation of the statute. Their principal argument was that the blood-testing program violated their Fourth Amendment rights against unreasonable searches and seizures in the absence of individualized suspicion. Virginia argued in response that such a requirement would render any meaningful DNA identification bank impossible since the collection of blood samples was designed to solve future cases for which no present suspicion could exist (35). The Fourth Circuit pointed out that with a "person's loss of liberty upon arrest comes the loss of at least some, if not all, rights to personal privacy otherwise protected by the Fourth Amendment" (36). Fingerprints, for example, are routinely taken when a suspect is arrested upon probable cause. The court determined that the Fourth Amendment protections available to free persons did not "hold true for those lawfully confined to the custody of the state" (37). Thus, the Fourth Amendment did not require an additional finding of individualized suspicion before blood could be taken from an incarcerated felon for identification purposes. Such a search was also reasonable because the minor intrusion caused by the taking of a blood sample was outweighed by Virginia's interest in determining the inmates' "identification characteristics specific to the person" for improved law enforcement (38).
The inmates next argued that the statute violated the constitutional prohibition against ex post facto laws because it appeared retroactively to authorize an extension of the inmates' sentences into their mandatory parole (39) The Fourth Circuit noted that the prohibition "'applies only to penal statutes which disadvantage the offender affected by them[;]' [it] assures that innocent conduct is not made criminal after the fact and that greater punishment is not imposed after the fact" (40). A statute that is not penal cannot be ex post facto. The court held, therefore, that DNA testing per se did not violate the ex post facto clause of the federal constitution. Importantly, the court further stated that
[i]n light of [its] determination that the program withstands challenge under the Fourth Amendment, the blood testing requirement legally can be implemented, and as is the case regarding any valid prison regulation, violators can be administratively punished for their failure to provide samples. (41)
The Ex Post Facto Clause does not prevent prison administrators from adopting and enforcing reasonable regulations that are consistent with good prison administration, safety and efficiency. (42)
The court did strike down five words in the statute which appeared to authorize a modification of the inmates' mandatory parole (43), but held that
[c]onsidering the inmates' questionable claim of privacy to protect their identification and the minimal intrusion resulting from taking a small sample of blood, [Virginia's] interest in combating and deterring felony recidivism justifies the involuntary taking of the sample and the creation of the DNA data bank as reasonable in the context of the Fourth Amendment. Furthermore, . . . Virginia's requirement that all incarcerated felons provide a blood sample to prison medical personnel prior to the inmate's release does not constitute a retroactive increase in the sentence of any inmate in violation of the Ex Post Facto Clause . . . . (44)
A different challenge to a DNA statute came in Washington. In Ryncarz v. Eikenberry (45) an inmate at the Washington State Penitentiary was asked to submit a blood sample for purposes of DNA identification analysis pursuant to Wash. Rev. Code § 43.43.754, which mandates a blood draw from all persons convicted of either specified sexual offenses or specified violent felonies. The inmate refused to submit to the blood draw, alleging that to do so would be contrary to his religious beliefs (46). He petitioned the Secretary of the Department of Corrections, challenging a departmental policy pertaining to nonconsensual blood draws. Less than a month later, various of the inmate's convictions were reversed. Although the inmate claimed that he informed prison officials of the reversals, his blood was taken by force ten days later. Restraints were placed on his ankles and wrists and secured to a waist chain. He was taken to a room in the hospital building where the blood was drawn. These events were recorded on a hand-held video. The inmate was provided medical attention the next day (47).
The inmate sued in federal court, making the following claims: (1) the blood draw was an unreasonable search under the Fourth Amendment, (2) prison officials used excessive force under the Eighth Amendment, (3) prison officials were deliberately indifferent to the inmate's serious medical needs under the Eighth Amendment, (4) the inmate's procedural due process rights under the Fourteenth Amendment were denied, and (5) his religious freedom rights under the First Amendment were denied (48). The federal district court made short work of the inmate's unreasonable search argument. Relying on the Fourth Circuit's Jones (49) decision, the district court held that Washington's statute was facially valid (50).
The district court then dealt with the rest of the inmate's constitutional claims in the context of whether the various public servants he had sued were within the protection of qualified immunity. With regard to the inmate's claim that because his convictions had been reversed he was no longer subject to the statute, the court looked to a decision from the Ninth Circuit Court of Appeals (51) in which an inmate had claimed that the involuntary withdrawal of his blood following the threatened use of a taser gun constituted an unreasonable search and seizure.
The [Ninth Circuit] noted that prisoners do not forfeit all constitutional rights, although those rights are subject to substantial limitations and restrictions in order to achieve legitimate correctional goals and maintain institutional security. Prison officials must put forward a legitimate governmental interest to justify their regulation and must provide evidence that the proffered interest is the reason why the regulation was adopted or enforced (52).
The district court noted that the posture of this inmate's case (no discovery or depositions had been had) precluded a decision as to whether Washington had a legitimate governmental interest in drawing the inmate's blood once he no longer fell within the class of persons subject to the statutory mandate. The same was true in connection with the inmate's Eighth Amendment claim that excessive physical force was used during the blood draw (53). The United States Supreme Court has held that whenever prison officials stand accused of using excessive physical force, the "core judicial inquiry" is whether the force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm (54) Again, in this case, the record lacked the necessary development to make such a judicial inquiry and decision (55). Finally, the district court gave short shrift to the inmate's claim that he was deprived of his constitutional right to exercise his religious beliefs on the grounds that those beliefs apparently prohibited him from shedding his blood. Washington's DNA statute and the accompanying DNA policy were both neutral towards imposing a burden on religion (56). The district court then granted qualified immunity to some of the governmental defendants and dismissed others from the lawsuit altogether (57).
Back in the Fourth Circuit Court of Appeals, inmates incarcerated in Virginia once again challenged that state's DNA statute. This time, in Ewell v. Murray (58), they argued that the Virginia Department of Corrections' regulation providing for punishment, by loss of good conduct credits, of an inmate who refused to provide a blood sample constituted a change in the good conduct allowance system which in turn violated the ex post facto clause of the federal constitution and also implicated various liberty interests protected by the Fourteenth Amendment (59).
The court first pointed out that it had considered the ex post facto argument in its earlier Jones decision (60).
First, we have already determined that the Virginia statute establishing the DNA bank is not penal in nature and therefore, as a reasonable prison regulation, may be applied to all inmates. We also must note that the [statutory] good conduct allowance system itself . . . was not amended during the applicable periods here. . . . Therefore, if the inmates have complied with all prison regulations and requirements, the time they will spend in prison remains the same as it would have, had the DNA requirements not been adopted. We are thus presented with the narrow question of whether prison officials may, consistent with the Ex Post Facto Clause, reasonably increase the penalties for prospective violations by inmates of reasonable prison regulations when the penalties may involve the loss of good conduct time credits. We hold that they may (61).
The Fourth Circuit went on to note that the situation before it was no different from that in which prison officials, "confronted with increased problems within the prison population of fighting or drug usage, meet the problem with the adoption of additional punishment for prospective violations" (62). This punishment does not add to the punishment originally imposed upon the inmate for the crime he committed. An inmate, after all, has no right to a particular set of prison regulations which have been adopted to maintain order, safety and efficiency within the prison (63). Thus, the 1992 amendment to the prison regulations did not violate the ex post facto clause (64). The court went on to hold that even accepting that Virginia's system of awarding good conduct credit created a liberty interest within the protection of the Fourteenth Amendment, the prison regulations nevertheless provided due process when the credits were withdrawn (65).
THE CHALLENGE TO NORTH CAROLINA'S DNA STATUTE (66).
On the day that North Carolina's DNA statute came into force, 1 July 1994, the prison system began to extract blood from the affected incarcerated felons. Extraordinary efforts were made to get the necessary blood draws from those felons who already had their parole dates set, since the prisons had been advised that such individuals could not be held past those dates (67). There were, inevitably, a number of felons who refused to accede to the mandate of the statute and the commands of the prison officials in carrying it out. These persons were persuaded, nevertheless, to give up their blood, by force where necessary (68). On 15 July 1994, a class action application for a temporary restraining order and preliminary injunction was filed in federal district court by one Steven Sanders, a murderer. The document, filed on the murderer's behalf by Prisoner Legal Services attorneys, asked that the SBI and the Secretary of Correction be prohibited from "requesting, soliciting, threatening or coercing [Sanders or any of the class of plaintiffs] into giving blood samples pursuant to N.C. Gen. Stat. 15A-266.4(a)" and that any samples already collected be "impounded" so that no further testing upon them could be done (69). Amongst other things, Sanders alleged that "the practice" was to tell the prisoners that they could not be paroled or released unless they submitted to the blood draw (70). A lengthy memorandum of law followed (71). Some part of this was devoted to the proposition that prison authorities could not take an inmate's blood by force because, according to Sanders, "this [was] not a case where use of force [was] reasonably necessary to accomplish a penological purpose" (72).
Five days later, Sanders filed a supplemental memorandum in which he alleged that the last sentence of N.C. Gen. Stat. § 15A-266.4(a) (73) which provides that those affected by the law are to have their blood taken prior to parole or release was in violation of the ex post facto clause of the federal constitution. He attempted to distinguish the language in the North Carolina statute from Virginia's law because he was aware of the Fourth Circuit's Jones decision, but he also argued that Jones was, in any event, "incorrectly decided" (74). He then went on to reiterate that the appropriate standard for review of a prison regulation is that it must be "reasonably related to legitimate penological purposes" (75).
The State filed an answer on 20 July 1994, in which it pointed out that Virginia's statute had only in very small part been determined unconstitutional (that is, in violation of the ex post facto clause) because it had specifically provided that inmates would be kept incarcerated beyond their set parole dates if they refused to submit to a blood draw for the DNA databank. North Carolina's statute had no such constitutional infirmity (76). The State also pointed out in answer to Sanders' Eighth Amendment claim that by statute, correctional officers shall use the amount of force necessary either to defend themselves or to maintain discipline, including the enforcement of a lawful order (77). Since North Carolina's DNA statute was substantively so similar to Virginia's, and Virginia's had twice (78) been held constitutional, force was authorized in those instances where an incarcerated felon subject to the DNA statute refused to give blood (79).
On 21 July 1994, the parties appeared in federal district court in Wilmington, North Carolina. After a short hearing, the district court judge issued an order allowing Sanders' motion in part. The court chose not to give credence to Sanders' claims that inmates who refused to give a blood sample were being denied parole, since it was inclined to believe the State's attorneys who assured the court to the contrary (80). The use of force issue was, however, a different matter.
Under the facts of the present case, if force is being used, it appears that such use of force is not an effort to maintain discipline, but to establish a DNA databank for use by state law enforcement officials. While such use could provide the requisite link between the regulation and a legitimate penological interest, as mandated in Turner v. Safly, 482 U.S. 78, 87 (1987), the use of force to achieve the interest concerns the court. Even if the establishment of a DNA databank is deemed a legitimate penological interest, it does not justify the use of force to obtain the samples (81).
The State was therefore "temporarily restrained from using force to extract blood samples from prisoners pursuant to N.C. Gen. Stat. § 15A-266" (82).
Sanders and the State thereafter readied themselves for a hearing on the merits of the case, including discovery and briefing. The hearing was held in Raleigh, North Carolina, on 23 September 1994. At that time, the State agreed to the certification of a class composed of "all persons who are now or will be incarcerated in the North Carolina Department of Correction (DOC) for the crimes enumerated in N.C. Gen. Stat. § 15A-266.4(h) committed before 1 July 1994" (83).
Sanders' trial brief raised four issues: (1) whether DOC's use of force to take blood samples violated the Fourth, Eighth or Fourteenth Amendments; (2) whether the statute violated the Fourth Amendment; (3) whether the statute violated the North Carolina Constitution; and (4) whether the ex post facto clause prohibited the denial of mandatory parole or eligibility for discretionary parole despite DOC's assurances that the statute would not be applied to do so (84). Stripped of exaggeration and hyperbole (85). the thrust of Sanders' brief appeared to be that his fundamental rights as guaranteed by the Bill of Rights outweighed the State's interest in maintaining prison discipline. On the surface, of course, this seems to be a cogent and persuasive generality. But Sanders went on to make a reductionist argument based on this principle that completely missed the point. As he had previously, he relied on the standard set forth by the United States Supreme Court in Turner v. Safly (86) to bolster his argument that DOC's "penological purposes [were] transparent after-the-fact justifications with little relationship to any pre-litigation (87) discussion, planning, legislative history or statutory provision" (88) and that force could not be used unless a proper penological purpose was present. Sanders then repeated the (by now) time-worn claims that DNA statutes such as North Carolina's violated the federal constitution's prohibitions against unreasonable searches and seizures, and ex post facto laws.
The State began its brief (89) by dealing in reality. It noted that DOC classified essentially any touching of an inmate as a use of force. Departmental policy requires that any such touching or use of force be only what is necessary under the circumstances presented; the inmate is thereafter presented to medical staff for an evaluation (90). The State then pointed out that Turner v. Safly (91) was not the appropriate standard for the analysis in this case, since Turner only applies when a prison regulation impinges on an inmate's constitutional rights. Since the Fourth Circuit had twice found that a DNA databank does not so impinge, Turner's threshold had not been crossed and the remainder of Turner's analysis would never be invoked (92). Moreover, Turner addresses institutional restrictions on an inmate's purported interests under the First Amendment, but Sanders had brought his case under the Fourth, Eighth and Fourteenth Amendments (93). Of course, the Fourth Circuit Court of Appeals had already unequivocally ruled that the drawing of blood from convicted, violent felons, without individualized suspicion, implicated no protected interest under the Fourth Amendment. There is no case and no theory under which-in the prison context-a valid requirement may be enforced administratively but not physically (94). An order to surrender a blood sample pursuant to North Carolina's DNA statute was therefore a lawful order, one to which correctional officers were statutorily empowered to ensure obedience by the use of reasonable force (95).
The State then analyzed the case under the correct standard-the Eighth Amendment. That amendment prohibits cruel and unusual punishment, but to state a claim, a prisoner must demonstrate that the force used was applied maliciously and sadistically and for the purpose of causing harm (96). The prison officials' motive here was, naturally, to effectuate the statutory mandate to collect the blood samples for North Carolina's DNA databank and database. Where there is no intent to punish, there is no claim under the Eighth Amendment. Lesser measures such as administrative penalties are of no consequence (97). Of course, the Fourth Circuit had already declared that the DNA procedure was not punitive since the drawing of blood by law was conducted only by medical personnel (98). In short, if the statute was constitutional and if the governmental interest outweighed the individual interest, then the right to use reasonable force to effectuate the government's interest also existed. As the State pointed out,
judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial. (99)
At the hearing, a lively argument was had about the two divergent views of the issue, as outlined above. On 11 October 1994, the district court judge issued his order in the State's favor, which was later published at the State's request (100). Sanders did not appeal the decision. To do so and to have lost, as would most likely have been the case, would have indelibly extended the precedent to all states within the Fourth Circuit and possibly beyond.
The district court began its opinion by summarizing the contentions both of Sanders and of the State (101). It noted that both parties conceded that Sanders' claim that the drawing of blood for DNA sampling violated the Fourth Amendment's prohibition of unreasonable search and seizure was controlled by the Fourth Circuit's ruling in Jones v. Murray (102). Since the district court was bound by the Jones decision, it held that Sanders had failed to state a claim under the Fourth Amendment (103).
The real heart of the opinion then followed. This writer can do no better than to quote the court itself.
Upon further reflection, the court agrees with [the State's] suggestion that the four-part test of Turner v. Safly, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), does not provide the best framework within which to analyze the issues at bar. Turner does establish the criterion to be applied when determining the constitutionality of prison regulations; however, the threshold which must be crossed in order to evoke the Turner analysis is not met by the facts of this case. . . . The Fourth Circuit has specifically held that the DNA sampling procedure does not violate an inmate's constitutional rights. Jones, 962 F.2d 302. Therefore, without a threat to inmates' constitutional freedom, the threshold of Turner is not met and the four-part framework should not be applied.
. . . . [I]n order to state a claim under the Eighth Amendment, the challenged force must be applied for the purpose of causing harm. Hudson, U.S., 112 S.Ct. 995 (1992). . . . There are no facts or allegations in the case at bar that the force being used to obtain DNA samples from inmates is being applied with the intention of harming the inmates. In fact, there is both fact and law to support the reasonable use of force by DOC personnel to effect compliance.
. . . . Thus, the DNA sampling procedure, having been labeled a lawful administrative order, may be enforced in the same way as other lawful orders of prison officials. North Carolina General Statute § 148-46 expressly permits the use of force to ensure compliance with a lawful order.
. . . . Obviously, order and discipline cannot be maintained if inmates are allowed to refuse to comply with lawful directions.
. . . . [E]nsuring compliance with a lawful order, such as the DNA sampling procedure, is a matter of institutional security and discipline. Therefore, the actual force used does not constitute cruel and unusual punishment simply because it caused pain to the inmates involved. [Sanders] fail[s] to state a claim under the Eighth Amendment (104)
The court then went on to dismiss in summary fashion Sanders' claim that the statute violated the ex post facto clause, and it reiterated its conviction that DOC was not keeping those inmates who had set parole dates incarcerated beyond those dates until they gave a blood sample. It found therefore that Sanders had failed to state any claims under the Fourteenth Amendment (105). Finally, because the court had dismissed all Sanders' claims for failure to state causes of action under the United States Constitution, it declined to exercise supplemental jurisdiction over his state law claims (106). The court therefore dissolved the temporary restraining order and dismissed Sanders' action in toto (107). Since this was a class action, the decision applies to all present and future inmates subject to North Carolina's DNA statute. A happy result for North Carolina indeed.
The Sanders case has already been cited as precedent in a federal decision from another state. In Vanderlinden v. State of Kansas (108), four inmates challenged the constitutionality and execution of the Kansas DNA statute (109). By 1 June 1993, the Kansas Department of Corrections had collected blood and saliva specimens from 2,657 inmates, of which approximately six collections were performed forcibly (110). The suing inmates claimed that the Kansas statute violated the Fourth Amendment, impermissibly infringed on their privacy interests, violated their procedural due process, constituted cruel and unusual punishment, violated the ex post facto clause, was a bill of attainder, and violated equal protection (111). As has so far uniformly been the case, the federal district court rejected all these claims. With regard to the use of force in obtaining the blood and saliva specimens, the inmates made two specific arguments. First, they alleged that their right to procedural due process had been violated by threats that upon refusal to comply with the statutory blood draw, they would be summarily placed in restraints, subjected to the involuntary extraction of blood, and placed in segregation for an indefinite period (112). The district court found that the inmates were not entitled to a hearing prior to being placed in segregation and therefore had suffered no deprivation of procedural due process. It further found that the inmates had not shown any use of excessive force that might arguably state a claim of cruel and unusual punishment in obtaining blood and saliva through involuntary means. Specifically, the court stated that the Kansas statute was "not penal and [the] means used to enforce [it had] not been shown to be malicious or grossly disproportionate to the refusal to comply with the statutory mandate" (113).
Sanders v. Coman (114), so far as this writer is aware, is the only case which directly addresses the use of force in obtaining blood draws pursuant to a DNA statute which has otherwise withstood constitutional attack, and used the correct analysis and standard of review in doing so. The case stands for the general principle that prison officials are constitutionally permitted to use force (tailored to the particular circumstances) in ensuring inmate compliance with a lawful order. Thus, the efforts of legislators and law enforcement alike in building and utilizing an effective tool with which to fight violent crime have not been in vain (115). We look now for the rewards to come in the future-greater felicity in solving violent felonies, a deterrent effect perhaps leading to a drop in the recidivism rate, and hopefully, a concomitant lessening of the trauma presently suffered by too many victims.
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