PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
In Re: DNA EX POST FACTO ISSUES
ANTHONY EUBANKS,
Plaintiff-Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF
CORRECTIONS; WILLIAM D. CATOE,
Individually and in his official
capacity as Director, South
Carolina Department of
Corrections; SOUTH CAROLINA LAW
ENFORCEMENT DIVISION,
Defendants-Appellees.

No. 08-6169

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)
Argued: January 28, 2009
Decided: March 26, 2009
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.

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COUNSEL
ARGUED: Justin Kahn, KAHN LAW FIRM, Charleston,
South Carolina, for Appellant. Andrew Lindemann, DAVIDSON & LINDEMANN, Columbia, South Carolina, for Appellees.

OPINION
TRAXLER, Circuit Judge:
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 Carolinas DNA bank and pay
a $250 processing fee before being paroled or released. We
affirm the district courts 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.
I.
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

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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).1
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 persons 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 Carolinas 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
1

Section 23-3-620 has since been amended. See S.C. Code Ann. 23-3620 (2009).

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that the requirements that each inmate provide a DNA sample

to be included in the DNA database and that each pay a $250
processing fee violate the Ex Post Facto Clause of the United
States Constitution.
Eubanks suit was consolidated with the pending suits of
several other inmates in an order that limited plaintiffs to raising the ex post facto challenges discussed above. All other
constitutional claims or challenges to the Act that were
asserted in any of the consolidated suits were dismissed without prejudice. Eubanks did not subsequently file a separate
action.
Reviewing cross-motions for summary judgment, the district court denied the plaintiffs motion and granted summary
judgment against them. The court ruled that the DNA-sample
and processing-fee requirements were not ex post facto
because they were not punitive. The court further concluded
that the Act did not prohibit the parole or release of prisoners
who had not paid their required fees.
II.
Eubanks now argues that the district court erred in granting
summary judgment against him.
We review the grant of summary judgment de novo. See
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Article
1, 9 of the United States Constitution provides that "[n]o
Bill of Attainder or ex post facto Law shall be passed." The
Supreme Court has explained that a statute is prohibited as ex
post facto if it "punishes as a crime an act previously committed, which was innocent when done; which makes more
burdensome the punishment for a crime, after its commission,
or which deprives one charged with crime of any defense
available according to law at the time when the act was committed." Dobbert v. Florida, 432 U.S. 282, 292 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)). Thus, a

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statute cannot be ex post facto unless it is penal in nature. See

United States v. ONeal, 180 F.3d 115, 122 (4th Cir. 1999).
We apply a two-part test in determining whether a law
imposes punishment for ex post facto purposes:
The Court first asks whether the legislatures intent,
as discerned from the structure and design of the
statute along with any declared legislative intent,
was to impose a punishment or merely to enact a
civil or regulatory law.
Second, even if the legislature did not intend to
impose a punishment, a law still may be said to do
so if the sanction or disability that it imposes is "so
punitive in fact" that the law "may not legitimately
be viewed as civil in nature." A defendant faces a
"heavy burden" in making a showing of such a punitive effect and can succeed only on the "clearest
proof."
Id. (citations omitted) (quoting United States v. Ursery, 518
U.S. 267, 288 (1996); Kansas v. Hendricks, 521 U.S. 346, 361
(1997)). Our analysis relating to the second part of the test
"focuses upon whether the sanction or disability that the law
imposes may rationally be connected to the legislatures
non-punitive intent, or rather appears excessive in light of
that intent." Id. (citing United States v. Salerno, 481 U.S. 739,
747 (1987)). We hold that neither the DNA testing requirement nor the requirement that the defendants pay the $250 fee
are penal in nature.
We note that two South Carolina Court of Appeals decisions have already held that the DNA-sample requirement is
not penal in nature. See Sanders v. South Carolina Dept of
Corr., 665 S.E.2d 231 (S.C. Ct. App. 2008); Cannon v. South
Carolina Dept of Prob., Parole & Pardon Servs., 604 S.E.2d
709 (S.C. Ct. App. 2004), revd on other grounds, 641 S.E.2d

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429 (S.C. 2007). In Cannon, the South Carolina Court of

Appeals held that "the legislatures intent [in requiring the
production of the samples] appears to have been to protect the
public, and not to punish those individuals who commit or
have committed the specified crimes." Cannon, 604 S.E.2d at
714. The court also concluded that the provision was not so
punitive in effect that the legislatures intention would be
negated. See id. Thus, it held that the DNA-sample requirement did not violate the Ex Post Facto Clause. See id. The
court reaffirmed its holding in Sanders. See Sanders, 665
S.E.2d at 236-37.
We agree with these decisions the correctness of which
Eubanks does not challenge. The Act provides that its purpose
is to allow SLED to build up the state DNA database by "develop[ing] DNA profiles on samples for law enforcement purposes and for humanitarian and nonlaw enforcement
purposes, as provided for in Section 23-3-640(B)." S.C. Code
Ann. 23-3-610 (2009). Section 23-3-640(B) provides that
DNA profiles may be used
(1) to develop a convicted offender database to
identify suspects in otherwise nonsuspect cases;
(2) to develop a population database when personal identifying information is removed;
(3) to support identification research and protocol
development of forensic DNA analysis methods;
(4) to generate investigative leads in criminal
investigations;
(5) for quality control or quality assurance purposes, or both;
(6) to assist in the recovery and identification of
human remains from mass disasters;

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(7) for other humanitarian purposes including

identification of missing persons.
S.C. Code Ann. 23-3-640(B) (2009). These purposes are not
punitive. See Jones v. Murray, 962 F.2d 302, 309 (4th Cir.
1992) (concluding that Virginia statute requiring that incarcerated felons provide blood samples was not punitive when
its purpose was to establish a data bank to aid future law
enforcement). Moreover, the Act is codified in Title 23 of the
South Carolina Code, which deals with law enforcement and
public policy, rather than in Title 16, which addresses crimes
and punishments. See Smith v. Doe, 538 U.S. 84, 94 (2003)
(explaining that the manner of an enactments codification is
"probative of the legislatures intent" regarding whether the
act is civil or penal for ex post facto purposes). And, the
DNA-sample requirement is certainly not "so punitive in fact"
that it cannot be considered civil in nature.
The requirement that those providing the samples pay a
$250 processing fee also is not punitive in nature.2 See Taylor
v. Rhode Island, 101 F.3d 780, 783-84 (1st Cir. 1996) (holding that $15 monthly fee upon prisoners to defray the costs of
their imprisonment was not punitive and thus not ex post
facto); cf. Slade v. Hampton Rds. Regl Jail, 407 F.3d 243,
251-52 (4th Cir. 2005) (upholding as nonpunitive $1-per-day
charge to prisoners to defray the costs of their incarceration
in the context of a claim by pre-trial detainees that their Due
2
Eubanks argues that SCDC violated his constitutional rights in removing funds to pay the $250 fee from his prison account without a court
order or garnishment proceeding. The argument Eubanks appears to
advance is that he was deprived of his property without due process of
law, but since no such claim is included in Eubanks complaint, no such
claim is before us. And, to the extent that Eubanks contends that the way
in which the SCDC collected the $250 fee from him demonstrates that the
statutory fee requirement is ex post facto, he is incorrect. See Seling v.
Young, 531 U.S. 250, 267 (2001) (holding that "[a]n Act, found to be civil,
cannot be deemed punitive as applied to a single individual in violation
of the . . . Ex Post Facto Clause[ ]").

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Process rights were being violated because the charge constituted punishment without a conviction). The South Carolina
General Assembly expressly provided that the funds generated by the fees will be "credited to [SLED] to offset the
expenses SLED incurs in carrying out the provisions of this
article." S.C. Code Ann. 23-3-670(B) (2009). And, the relatively small size of the fee also indicates that it was not
intended to have significant retributive or deterrent value.
Thus, the "structure and design" of the statute demonstrate
that the fee was intended to be an administrative charge to pay
for the substantial expenditures that would be needed to
implement, operate, and maintain the DNA database.
Further, Eubanks has not shown by the "clearest proof" that
the fee requirement is "so punitive in fact that the law may not
legitimately be viewed as civil in nature." ONeal, 180 F.3d
at 122 (internal quotation marks omitted). Eubanks offers
nothing to suggest that $250 is excessive considering the costs
associated with the database.
Apart from the penal or civil nature of the requirement that
he pay the processing fee, Eubanks argues that the statute is
ex post facto because it prohibits the parole or release of any
prisoner who is required to pay the fee but has not yet done
so. That such a requirement is ex post facto is established by
Jones, wherein we struck down a portion of a Virginia statute
that applied to some inmates whose criminal conduct predated
the enactment of the statute. See Jones, 962 F.2d at 310-11.
The statute deferred the release of the inmates under mandatory parole laws until they provided a blood sample. See id.
We explained that deferral of those inmates release dates
would constitute "after-the-fact punishment when denying a
sentence benefit [the right to parole] that [the prisoner] had at
the time the offense was committed." Id. at 310.
In this case, as we have explained, the district court construed S.C. Code Ann. 23-3-670 not to authorize such a

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deferral. Eubanks contends that that construction was erroneous. We agree.

In interpreting a state law, we apply the statutory construction rules applied by the states highest court. See Carolina
Trucks & Equip., Inc. v. Volvo Trucks of N. Am., Inc., 492
F.3d 484, 489 (4th Cir. 2007). Under South Carolina law,
when interpreting a statute, "[a] possible constitutional construction must prevail over an unconstitutional interpretation."
Curtis v. State, 549 S.E.2d 591, 597 (S.C. 2001) (internal quotation marks omitted). However, statutory language must be
given its plain and ordinary meaning. See City of Columbia v.
Moser, 311 S.E.2d 920, 921 (S.C. 1983). If a statute is unambiguous, its unambiguous meaning must be given effect and
"the rules of statutory interpretation are not needed." Knotts
v. South Carolina Dept of Nat. Res., 558 S.E.2d 511, 516
(S.C. 2002) (per curiam) (internal quotation marks omitted).
We do not defer to an agency interpretation that is contrary
to a statutes unambiguous meaning. See Brown v. Bi-Lo, Inc.,
581 S.E.2d 836, 838 (S.C. 2003).
The State argues that, because Jones was decided several
years before the Act was enacted, we must presume that the
General Assembly was aware that it would violate the Ex Post
Facto Clause to delay the parole or release of an inmate who
committed his crime prior to the statutes enactment. The
State maintains that, especially in light of this presumption,
the statute may plausibly be read merely to set the time by
which the $250 must be paid rather than to provide an
enforcement mechanism to ensure payment of the funds. The
State argues that we should adopt this construction under the
doctrine of constitutional avoidance and in deference to the
interpretations of SCDC and SLED, the agencies charged
with administering the statute.3 We disagree.
3

The district court stated in its summary judgment order that "[b]ased
upon the briefs of both counsel, it appears to be undisputed that [SCDC
and SLED] interpret the Act as not requiring a non-paying inmate to be
held beyond any parole or release date." J.A. 272 (internal quotation
marks omitted).

10

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We conclude that the language of 23-3-670(A) stating

that "the fee must be paid before the person is paroled or
released from confinement" unambiguously prohibits the
parole or release of a prisoner required to pay the fee until the
fee is paid. Since the statute is reasonably susceptible to only
this reading, the doctrine of constitutional avoidance does not
apply, and we need not defer to any contrary agency construction. And, because the requirement that an inmate not be
paroled or released until he has paid his $250 fee, that requirement is unenforceable against him. See Jones, 962 F.2d at
311.
Our holding that this provision is unenforceable against
Eubanks requires us to determine whether it is severable from
the remainder of the statute. Under South Carolina law,
[t]he test for severability is whether the constitutional portion of the statute remains complete in
itself, wholly independent of that which is rejected,
and is of such a character that it may fairly be presumed that the legislature would have passed it independent of that which conflicts with the constitution.
When the residue of an Act, sans that portion found
to be unconstitutional, is capable of being executed
in accordance with the Legislative intent, independent of the rejected portion, the Act as a whole
should not be stricken as being in violation of a Constitutional Provision.
Joytime Distribs. & Amusement Co. v. South Carolina, 528
S.E.2d 647, 654 (S.C. 1999) (per curiam) (citations and internal quotation marks omitted). Here, the statute remains complete without the requirement that inmates pay their fees
before being granted parole or released from confinement.
And, the purpose of defraying the cost of the implementation,
operation, and maintenance of the DNA database can be
accomplished without that requirement, especially considering that the statute allows for the garnishment of the prison-

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11

ers wages while the prisoners are incarcerated. We therefore

conclude that the remainder of the statute is severable from
the offending provision.
III.
In sum, we reverse the grant of summary judgment against
Eubanks and hold that the statutory requirement that the $250
fee must be paid before a prisoner is paroled or released from
confinement is unenforceable against him. Otherwise, we
affirm.
AFFIRMED IN PART AND REVERSED IN PART