Antonin Scalia’s blistering dissent (pdf., scroll down) in Maryland v. King is utterly convincing. In a 5-4 ruling that included Roberts, Thomas, Alito, and Breyer, and was written by Kennedy, the Supreme Court said that the police do not need a warrant to take a sample of your DNA if you have been arrested for “a serious crime.” The case involved a man who was arrested for an assault in 2009 but convicted for a rape he committed in 2003.
When I originally read the facts of the case, I was ambivalent about the merits. Why shouldn’t we use DNA technology to solve cold cases? What sealed the deal for me in agreeing with Scalia was a point he made at the end of his dissent. There is no Fourth Amendment argument against taking a DNA sample from someone who has been convicted of a crime. So, the only people who are ultimately impacted by the Court’s rulings are people who are innocent of the crime for which they have been arrested but guilty of a previous crime. The plaintiff in the case would have ultimately been matched to the 2003 rape assuming he was convicted for the 2009 assault. While it’s nice to know that someone is perhaps more dangerous than you suspected when you are making a decision about bail, DNA testing currently takes too long to have any impact on arraignments, which must occur within days of an arrest.
The majority decision was completely disingenuous, depending as it did on the state’s interest in properly identifying suspects in their custody. I also share Scalia’s discomfort with the idea that the Court has provided meaningful guidance to law enforcement by limiting these DNA samples to people who have been accused of “a serious crime.” First, this undercuts the argument that the purpose is primarily for identification. But, secondly, in introducing the idea that someone’s hidden violent past is part of their “identity,” the Court adopts the flawed theory that the only people who have violent pasts are people accused of “serious” crimes. The majority argues that it’s important to know about someone’s violent past because it allows law enforcement and prison officers to take appropriate precautions. However, their interest in knowing that information is no different for someone arrested for delinquent parking tickets than it is for someone accused of murder.
Scalia probably doesn’t spend enough time addressing this conflation between identifying someone by, for example, fingerprinting them, and identifying someone as dangerous by running their DNA through unsolved crime databases. But that’s the trick Kennedy uses to justify these searches.
Scalia calls these warrantless DNA swabs “suspicionless searches.” Kennedy tries to tie them to suspicion by limiting their use to “serious” accusations. In other words, Kennedy is saying that if you beat up your girlfriend then there is a reason to suspect that you once raped someone, but if you committed some petty act of vandalism, there is no reason to suspect that you once raped someone. Scalia is saying that you can’t stick something in someone’s mouth against their will unless you have reason to suspect that they have committed a specific crime, and you need a warrant that specifies that crime.
When I began thinking about this, I was leaning heavily on the benefits of getting rapists and other violent criminals off the street. The invasion of privacy is relatively minimal and the benefit for public safety and justice is fairly high. But once you realize that you can legally collect this information from anyone who is convicted of a crime, it becomes clear that the ruling will only send people to jail who were wrongfully arrested for some other crime. The majority’s argument about bail is ridiculous. And fingerprinting is a less invasive and completely adequate way of identifying suspects.
I don’t know what Justice Breyer was thinking in joining the majority. Let’s just say that I’m disappointed.
