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Pennsylvania DNA Act Not Ex Post Facto

The Pennsylvania Supreme Court held that the state?s mandatory DNA collection law does not violate state or federal ex post facto prohibitions. The court upheld application of the law to one defendant, finding that she was convicted of a predicate offense. It reversed with respect to another defendant, however, finding that he was not convicted of a predicate offense.

In 2005, Misty Derk was convicted of theft, which was graded as a third degree felony under Pennsylvania law. She was then required to submit a DNA sample to be stored in a DNA database, and to pay a mandatory fee of $250 under 44 Pa. C.S.A. § 2301-2336 (DNA Act).

In 2005, Kurt Bingaman was also convicted of theft, but his two convictions were graded as first and second degree misdemeanors. He was also required to submit a DNA sample and pay $250 under the DNA act.

Derk and Bingaman appealed, challenging application of the DNA Act, and their appeals were consolidated. Initially, the Superior Court noted that the DNA Act applies to all felony convictions. Therefore, the court rejected Derk?s claim that she did not commit a predicate offense. Since Bingaman?s convictions were graded as misdemeanors, the court found that he did not commit a predicate offense and the DNA Act should not have been applied to him.

The court also rejected appellants? argument that the DNA Act violated state or federal ex post facto prohibitions. Citing United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636 (1980) the court engaged in an extensive analysis of the legislative intent, purpose, and affect of the DNA Act to determine if it imposed punishment for ex post facto purposes.

Ultimately the court determined that the DNA Act is not punitive because ?the General Assembly did not intend to punish when enacting the DNA Act?; ?the application of the Act does not result in?historical forms of punishment?; and ?the Act is not directed at the traditional aims of punishment ? retribution and deterrence.? So it did not violate ex post facto prohibitions. See: Commonwealth of Pennsylvania v. Derk, 895 A.2d 622 (PA Sup Ct. 2006).

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Related legal case

Commonwealth of Pennsylvania v. Derk