dissenting.
I respectfully dissent. Unlike the majority, I believe that the provisions of the DNA Detection of Sexual and Violent Offenders Act (DNA Act)1 violate the separation of powers doctrine, the ex post facto clauses of the United States and Pennsylvania Constitutipns and the Fourth Amendment to the United States Constitution.
I. Separation of Powers
The majority holds that the DNA Act does not violate the separation of powers doctrine because the DNA Act does not alter Dial’s sentence. (Majority op. at 4.) I disagree.
Article V, section 1 of the Pennsylvania Constitution provides that the “judicial power” of the Commonwealth shall be vested in the unified judicial system. This means that “[t]he whole judicial power of the Commonwealth is vested in courts. Not a fragment of it belongs to the legislature.” Young v. Commonwealth Board of Probation and Parole, 487 Pa. 428, 432, 409 A.2d 843, 846 (1979) (quoting Commonwealth ex rel. Johnson v. Halloway, 42 Pa. 446, 448 (1862)) (emphasis added). Moreover, “[t]he sentencing power is a well recognized facet of the judicial power.” 2 Id. at 432, 409 A.2d at 845.
*8Under federal law, parole eligibility is part of a prisoner’s sentence. Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974); see also Jones v. Murray, 962 F.2d 302 (4th Cir.), cert. denied, 506 U.S. 977, 113 S.Ct. 472, 121 L.Ed.2d 378 (1992) (stating that parole eligibility is a facet of the sentence imposed). By establishing a maximum sentence and a minimum sentence at the time of sentencing, the district judge “determines when the offender will become eligible for consideration for parole.”3 Warden, 417 U.S. at 659, 94 S.Ct. 2532.
Likewise, in Pennsylvania, the sentencing judge establishes parole eligibility at the time of sentencing when the judge establishes a maximum and a minimum sentence pursuant to the Sentencing Code.4 However, the legislature, through its enactment of section 306(b) of the DNA Act,5 has completely negated the minimum sentence, and parole eligibility, for every prisoner who has been convicted of an offense specified in the DNA Act and who refuses to submit to DNA testing.
Section 306(b) of the DNA Act states that a person serving a term of confinement for the' specified offenses “shall not be released in any manner prior to the expiration of his maximum term of confinement unless and until a DNA sample has been withdrawn.” This means that such prisoners who refuse to submit to DNA testing may not be released on parole. See 35 P.S. § 7651.306(e). Thus, in effect, the legislature has imposed a different sentence, a sentence without parole, on prisoners who refuse to submit to DNA testing.6 Because the legislature has re-sentenced these prisoners to serve a term of confinement without parole, the legislature has usurped the judicial sentencing function and violated the separation of powers doctrine.7
In reaching a contrary result, the majority relies on Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977), for the proposition that a prisoner’s legal sentence is only the maximum sentence. The majority concludes, based on Sutley, that the *9DNA Act does not violate the separation of powers doctrine because it does not alter a prisoner’s maximum sentence. (Majority op. at 4.) However, the Pennsylvania Supreme Court stated in Sutley that, although a prisoner’s legal sentence is the maximum sentence, a law altering a prisoner’s minimum sentence “might constitute an unwarranted usurpation of judicial authority.”8 Id. at 269 n. 8, 378 A.2d at 786 n. 8 (citing Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942); see also Commonwealth v. Henderson, 482 Pa. 359, 367, 393 A.2d 1146, 1150 (1978)). Thus, I would not rely on Sutley to conclude that the DNA Act, which goes far beyond altering a prisoner’s minimum sentence, does not violate the separation of powers doctrine.
II. Ex Post Facto Violation
The majority also holds that the DNA Act does not violate the ex post facto clauses of the United States and Pennsylvania Constitutions.9 (Majority op. at 4-7.) Again, I disagree.
The ex post facto clause is “aimed at laws that ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ ” California Dep’t of Corrections v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Thus, two critical elements must be present to establish that a law violates the ex post facto prohibition: (1) the law must be retrospective, that is, it must apply to events occurring before its enactment; and (2) the law must disadvantage the persons affected by the law. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Here, the question is whether the DNA Act retroactively increases the punishment for the crimes specified in the DNA Act.
The majority examines two aspects of the DNA Act for possible ex post facto violations: (1) the DNA testing itself; and (2) the denial of parole for refusing to submit to DNA testing. In the first instance, the majority concludes that DNA testing itself involves no punishment at all. (Majority op. at 4-5.) I cannot agree.
Section 307 of the DNA Act, 35 P.S. § 7651.307, governs the drawing of DNA samples10 from prisoners. Section 307(c) of the DNA Act, 35 P.S. § 7651.307(c) (emphasis added), provides as follows: “Duly authorized law enforcement and corrections personnel may employ reasonable force in cases where an individual refuses to submit to DNA testing authorized under this act, and no such employee shall be criminally or civilly liable for the use of reasonable force.”11
Thus, while section 306(b) of the DNA Act suggests that a prisoner may refuse DNA testing and serve his or her maximum term of confinement, section 307(c) of the DNA Act authorizes prison officials to use “reasonable force” when a prisoner refuses DNA testing. The majority does hot address section 307(c) or the use of “reasonable force” in the taking of a blood or tissue sample for DNA testing. Does *10section 307(c) mean that officials can beat a prisoner until he or she submits to DNA testing? Does it mean that officials can physically restrain or strap down a prisoner in order to collect a DNA sample? Does it mean that officials can threaten, intimidate or terrorize a prisoner in order to obtain a DNA sample? Does section 307(c) mean that officials can suspend a prisoner’s privileges or place a prisoner in restrictive housing until the prisoner submits to DNA testing? 12 See 37 Pa.Code § 93.10 (authorizing suspension of privileges and placement in restrictive housing as means of discipline for misconduct). If the DNA Act authorizes any of these means of coercion, then the DNA testing process involves punishment.
With respect to the denial of parole for refusing to submit to DNA testing, the majority acknowledges that this is punishment. (Majority op. at 6.) However, the majority concludes that the punishment is not retrospective because it is imposed “for non-compliance with a reasonable administrative regulation enacted prior to the act of non-compliance.”13 (Majority op. at 6.)
A proper analysis of the retroactivity issue examines whether the relevant provision of the DNA Act “applies to prisoners convicted for acts committed before the provision’s effective date.” Weaver, 450 U.S. at 31, 101 S.Ct. 960. Here, the relevant provision is section 306(b) of the DNA Act, 35 P.S. § 7651.306(b), which is entitled “Conviction before effective date.” This title alone indicates that section 306(b) of the DNA Act is retroactive in nature; indeed, it shows that the provision applies to prisoners with convictions before the effective date.
The retrospective nature of section 306(b) of the DNA Act is equally apparent from the fact that the provision does not apply to all prisoners. The provision applies only to a category of prisoners who have been previously convicted for one of the specified offenses. Thus, the punishment for refusing to submit to DNA testing, the denial of parole, is based on past conduct for which certain prisoners were convicted.
Because the DNA Act retroactively increases the punishment of certain prisoners, I conclude that the DNA Act violates the ex post facto clauses of the United States Constitution and the Pennsylvania Constitution.14
III. Fourth Amendment
Finally, the majority concludes that the DNA testing program does not violate the Fourth Amendment prohibition against unreasonable search and seizure. (Majority op. at 7.) Prior to its discussion of the *11matter, the majority acknowledges that the Commonwealth has not raised a preliminary objection to Dial’s Fourth Amendment claim. (Majority op. at 6.) For this reason, I would not address the Fourth Amendment issue. However, I do so here because I cannot agree with the majority’s conclusion.
“The Fourth Amendment prohibits only unreasonable searches.” Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The test of reasonableness in each case “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Id. at 559, 99 S.Ct. 1861. To determine the reasonableness of a search, courts must consider the following: (1) the scope of the particular intrusion; (2) the manner in which it is conducted; (3) the justification for initiating it; and (4) the place in which it is conducted. Id.
A.Scope of Intrusion
The majority cites Skinner v. Railway Labor Executives’ Association, 489 U.S. 602,109 S.Ct. 1402,108 L.Ed.2d 639 (1989) and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), for the proposition that the withdrawal of blood from a person’s body for DNA testing involves a relatively minimal intrusion. However, the DNA Act authorizes not only a blood test, but also the taking of a tissue sample. 35 P.S. § 7651.103. In Schmer-ber, 384 U.S. at 772, 86 S.Ct. 1826, the court held that “the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions... [but the Constitution does forbid] more substantial intrusions....” Because there is nothing before us to indicate whether the taking of a tissue sample involves a more substantial intrusion than the taking of a blood sample, I cannot conclude that the DNA Act involves only a minimal intrusion.
The majority also suggests that DNA testing is a minimal intrusion “like fingerprinting.” (Majority op. at 5.) However, the National Research Council of the National Academy of Sciences, in a report entitled “DNA Technology in Forensic Science,” pointed out that DNA testing is less reliable than fingerprinting, more costly and more difficult to obtain, and it represents a greater intrusion on an individual’s •privacy than fingerprinting. Sheryl H. Love, Note: Allowing New Technology to Erode Constitutional Protections: A Fourth Amendment Challenge to Non-Consensual DNA Testing of Prisoners, 38 Vill. L.Rev. 1617,1645-46 (1993) (hereinafter Allowing New Technology). Indeed, once scientists are able to map human DNA, DNA samples will reveal everything about a person, including race, appearance and predisposition to disease.15 Id. The majority does not consider this potential expansive intrusion into a prisoner’s privacy from DNA testing, but I cannot ignore it.
B.Manner of Testing
Section 307(a) of the DNA Act, 35 P.S. § 7651.307(a), requires that qualified individuals must draw the DNA samples “in a medically approved manner.” However, authorities “may employ reasonable force” if a prisoner refuses to submit to DNA testing. 35 P.S. § 307(c). As indicated above, I do not believe that any force is reasonable when a prisoner refuses to submit to DNA testing. Thus, to the extent that the DNA Act authorizes force in conducting the DNA test, I conclude that the manner of conducting the DNA test is unreasonable.
C.Justification for Testing
As applicable here, the justification for the DNA testing of samples from individu*12als convicted of felony sex offenses and other specified offenses is to establish a DNA data bank to assist law enforcement agencies in criminal investigations and to deter recidivist acts.16 85 P.S. § 7651.102. I find this justification unreasonable for several reasons.
The first reason is that the DNA Act makes an irrational distinction between different classes of prisoners. There is no factual basis for taking DNA samples from a particular group of prisoners instead of from all prisoners. If the DNA data bank can help identify recidivists who have been convicted previously of felony sex offenses, murder, harassment, stalking and indecent assault, then the DNA data bank can help identify recidivists who have been convicted-previously of kidnapping, arson, burglary, robbery, theft and other crimes. Indeed, burglars and thieves have a much higher recidivism rate than persons convicted of rape.17 It makes no sense to require DNA samples from prisoners who are less likely to commit the same crime after release from prison, but not to require DNA samples from prisoners who are more likely to commit the same crime after release from prison.
The second reason is that the DNA Act does nothing to deter the recidivism of those prisoners who refuse DNA testing and elect to serve their maximum terms of confinement. Prisoners who refuse to submit to DNA testing are likely to be the hard-core offenders, the ones most likely to be recidivists. These prisoners may not be released on parole, or on furlough, and may not participate in work release or any other prerelease program. See 85 P.S. § 7651.306(e). Without any expectation of release before the conclusion of their maximum terms, these prisoners will have no reason to seek treatment or to participate in rehabilitation programs. These prisoners-will most likely complete their maximum terms with absolutely no rehabilitation; they will commit the same crimes for which they were incarcerated; and law enforcement agencies will not have a DNA profile for them. Thus, the DNA Act establishes a DNA testing program that ultimately defeats the very purpose of the statute.
The third reason is that the DNA profiles retained in the DNA data bank may not even be admissible as evidence in Pennsylvania courts. In Commonwealth v. Blasioli, 552 Pa. 149, 713 A2d 1117 (1998) (relying on Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994)), our supreme court stated that the restriction fragment length polymorphism (RFLP) method of DNA profiling is admissible as evidence in Pennsylvania courts under the standard set forth in Frye v. United States 293 F. 1013 (D.C.Cir.1923). However, the court noted that scientists have developed a newer method of DNA analysis, the polymerase chain reaction (PCR) method, which has not yet gained acceptance in the scientific community and, thus, would not be admissible evidence under Frye.18 Id. The DNA Act does not require the use of a particular method of DNA analysis in creating the DNA data bank. Moreover, there is no evidence before us here to show that the *13DNA profiles stored in the DNA data bank would be admissible evidence under Frye. If the DNA profiles are not admissible evidence, then there is no justification for the DNA data bank.
The fourth reason is that, even if the DNA profiles are admissible under Frye, DNA profiles do not identify individuals with 100% accuracy. DNA profiles only provide evidence of a statistical probability that a person has some connection with a crime. See Allomng New Technology. Thus, in each case involving DNA profiles, there must be statistical evidence to explain the significance of the DNA profiles. However, like some DNA profiles, some statistical evidence is not admissible under Frye. In Blasioli, our supreme court held for the first time that statistical evidence based upon “the product rule” is admissible under Frye. The DNA Act does not require that prosecutors use statistical evidence based on “the product rule” to explain DNA profile evidence. If the statistical evidence used by prosecutors is not admissible under Frye, then the DNA profile has no evidentiary value. If the DNA profile has no evidentiary value, then there is no reason for the DNA data bank.
D. Place for Testing
As for the place of the search, section 307(a) of the DNA Act, 35 P.S. § 7651.307(a), states that DNA samples will be drawn from prisoners at the place of incarceration. In this case, the place of incarceration is Graterford State Correctional Institution (SCI). However, there is nothing before us to show that the facilities at Graterford SCI permit the taking of DNA samples in a medically approved manner. Without such evidence, I cannot conclude that DNA testing at Graterford SCI constitutes a reasonable search.
Based on the foregoing, I would conclude that the DNA testing program established by the DNA Act violates the Fourth Amendment prohibition against unreasonable searches. Accordingly, I would overrule the preliminary objections.
. Act of May 28, 1995, P.L. 1009, 35 P.S. §§ 7651.101-7651.1102.
. It is a legislative function to enact the laws that govern sentencing, but it is a judicial function to actually impose an appropriate *8sentence in a given case. See Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977).
. Under federal law, generally, an offender becomes eligible for parole after serving one-third of his sentence. See Warden; see also 18 U.S.C. § 4208(a).
. By operation of law, the maximum sentence establishes the minimum sentence, when an offender is eligible for parole. See section 9756(b) of the Sentencing Code, 42 Pa.C.S. § 9756(b) (stating that the minimum sentence shall not exceed one-half of the maximum sentence); see also section 21 of the Parole Act, Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21 (stating that the Parole Board may only grant parole after the expiration of the minimum sentence).
. 35 P.S. § 7651.306(b).
. I note that section 306(b) of the DNA Act is in conflict with some of the very provisions of the Sentencing Code that govern the offenses specified in the DNA Act. For example, sections 9717 and 9718 of the Sentencing Code, which establish mandatory sentences for sexual offenses against elderly and infant persons, state that: “Parole shall not be granted until the minimum term of imprisonment has been served.” 42 Pa.C.S. §§ 9717(b) and 9718(b). However, pursuant to section 306(b) of the DNA Act, parole shall not be granted for such offenses until the minimum term of imprisonment has been served and until the prisoner has submitted to DNA testing.
.I point out that, in Pennsylvania, a sentence must be imposed for the minimum amount of time that is consistent with the gravity of the offense, the rehabilitative needs of the defendant and the protection of the public. Section 9721(b) of the Sentencing Code, 42 Pa. C.S. § 9721(b); Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982). In each case, the sentencing judge considers these factors and determines an appropriate sentence for the offender. If the sentencing judge determines that an offender should become eligible for parole after serving a minimum sentence, the legislature cannot interfere with that judicial determination. Indeed, the U.S. Supreme Court has stated: "[I]t could not be seriously argued that sentencing decisions are made without regard to the period of time a defendant must spend in prison before becoming eligible for parole." Warden, 417 U.S. at 658, 94 S.Ct. 2532.
. The court in Sutley declined to address whether a legislative interference with the minimum sentence of a prisoner violates the separation of powers doctrine. See Sutley, 474 Pa. at 269 n. 8, 378 A.2d at 786 n. 8.
. Article I, section 10 of the United States Constitution and Article I, section 17 of the Pennsylvania Constitution prohibit the passage of any ex post facto law.
. A "DNA sample” is a "blood or tissue sample.” Section 103 of the DNA Act, 35 P.S. § 7651.103. The majority seems to assume that a DNA sample' is only a blood sample and does not address the implications of taking a "tissue sample" from a prisoner.
.As a general rule, authorities may use "that reasonable force which is necessary to effectuate their legitimate purpose." Commonwealth v. French, 531 Pa. 42, 53, 611 A.2d 175, 180 (1992) (J. McDermott, concurring); see sections 504 and 509(5) of the Crimes Code, 18 Pa.C.S. §§ 504 and 509(5). The word "force" means: “Power, violence, compulsion, or constraint exerted upon or against a person....” Black's Law Dictionary 644 ’ (6th ed.1990).
. The majority indicates that, in Virginia, prison officials may administratively punish prisoners who refuse to provide a blood sample for DNA testing. (Majority op. at 8.) It is not clear whether the majority believes that prison officials in Pennsylvania may do likewise.
. I note that the DNA Act is not an administrative regulation. Certainly, the DNA Act allows prison officials to punish administratively certain prisoners who refuse to submit to DNA testing. However, there is no connection whatsoever between the creation of a DNA data bank and the safe and efficient operation of Pennsylvania’s prisons. See Jones, (J. Mumaghan, concurring and dissenting) (creation of DNA data bank unrelated to any institutional penal purpose). Moreover, if the DNA Act served a legitimate administra-five purpose, it would apply to all prisoners and not just to sex offenders and prisoners who have been convicted of the other specified offenses.
I further note that regulations were adopted pursuant to the DNA Act at .37 Pa.Code §§ 59.1-59.21 on October 18, 1996. However, these regulations are not the subject of our inquiry here. Indeed, the majority does not identify or discuss these regulations.
. Cf. Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (stating that retroactive alteration of parole provisions implicates the ex post facto clause); see also Warden, 417 U.S. at 663, 94 S.Ct. 2532, (stating that an act repealing “parole eligibility previously available to imprisoned offenders would clearly present [a] serious question under the ex post facto clause_”).
. I note that a person’s DNA samples will be retained in the DNA data bank for at least 50 years. See 37 Pa.Code § 59.1 l(3)(vii).
. The DNA Act indicates that other states have enacted similar laws. See 35 P.S. § 7651.102. However, the ■ fact that other states have similar laws does not, by itself, justify the enactment of the DNA Act in Pennsylvania.
. In a leading study, social scientists found: (1) the recidivism rate for burglary was 31.9%; (2) the recidivism rate for larceny was 33.5%; (3) the recidivism rate for drug offenses was 24.8%; and (4) the recidivism rate for rape was 7.7%. See Roger C. Park, Character at the Crossroads, 49 Hastings L.J. 717 (March 1998). The low recidivism rate for rape is no doubt because more than eighty per cent of all rape cases involve acquaintance rape and because it is easier to apprehend a known assailant than a stranger. See Critical Perspectives on Megan’s Law: Protection vs. Privacy, 13 N.Y.L. Sch. I. Hum. Rts. 1 (1996).
.The court did not discuss all of the different methods of DNA analysis. See Allowing New Technology.