DNA analysis is the major crime-solving advance of our time. It’s the science behind many exonerations, and many more guilty pleas. It’s far more accurate than fingerprinting or eyewitness identification. So the more DNA collection, the better, right?
Federal prosecutors and 28 states have answered yes to that question by routinely collecting DNA samples from arrestees. On Monday, the Supreme Court approved Maryland’s DNA law, ushering in a new era of massive double-helix collection. There are two oddities about the court’s 5-to-4 ruling. The first is that the majority pretended that this decision had little to do with solving crimes. The second is the lineup: The dissent is a smoking Scalia special—and he’s joined by Justices Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor rather than the court’s conservatives. Anthony Kennedy picked off Stephen Breyer (along with Clarence Thomas, Samuel Alito, and John Roberts) to eke out a majority. But it’s Scalia who wins the argument.
Here are the background facts: All 50 states collect DNA from people who have been convicted of crimes, and that’s not what’s at issue here. Instead, we’re talking about whether the states can widen their databases of genetic material to include people who have been arrested and not yet found guilty. Kennedy presents this as merely a basic booking procedure. It’s like fingerprinting, he says, and “the legitimate government interest” is “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” It’s a simple matter of allowing the police to make sure they know whom they’ve got, and alerting judges about whether the person who has been arrested has a record, so they can take that into account in deciding whether to release him on bail.
Kennedy is also unconcerned about the level of intrusion. Cheek swabs count as a search under the Fourth Amendment, which protects us all from unreasonable searches and seizures. But since swabbing is minimally intrusive, it’s no big deal. The majority also dismisses the privacy concerns that come with DNA collection: “The argument that the testing at issue in this case reveals any private medical information at all is open to dispute,” Kennedy says.
Has Kennedy never watched a TV crime show? That is basically Scalia’s opening question, in an opinion he felt strongly enough about to read from the bench—not the standard practice. “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous,” he writes. Then he decimates Kennedy’s discussion of booking and bail with a few obvious and unchallenged facts: It took weeks to test the DNA of Alonzo King, the arrested man who challenged Maryland’s DNA collection law, and months for the samples to come back from testing. By then, booking, arraignment, and bail were long over. “Does the Court really believe that Maryland did not know whom it was arraigning?” Scalia asks. “The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity.” Nor is Maryland particularly slow relative to the other states—in fact, it’s perhaps a bit faster.
Why did Kennedy write his opinion in a way that makes him sound like the last guy on Earth to discover Law & Order? Because the Supreme Court has never held that if the police have probable cause to make an arrest, they can also search a suspect for evidence of past or future crimes. Think about it for a second: Should getting arrested because you’re the suspect in one burglary mean the police can go search your house, without a warrant, on the theory that you might have stolen additional property? If the real purpose of taking DNA from someone who has been arrested is to match his profile against the national database of unsolved crimes, then the court would have to admit to making a big and unprecedented move—one that allows the government to ensnare more and more of us in a thickening web of our own data. Law enforcement over liberty, by a wide margin.
Scalia doesn’t belabor the privacy costs, though he could. It’s disingenuous to compare DNA collection to fingerprinting, given the additional information it conveys about sex, age, and details of physical appearance. Scalia, though, is largely offended as a believer in originalism—the theory that the founders’ understanding of the constitution should be our understanding. Scalia speaks for them, and he is sure this is not what they had in mind. “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school,” Scalia writes. “Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” This argument apparently didn’t convince Clarence Thomas, who often shares Scalia’s originalist bent, or Samuel Alito or Chief Justice John Roberts, who do more rarely. As for Breyer, he has generally counseled judges to be cautious about striking down state laws relating to privacy, plus he has been all over the map about the Fourth Amendment.