Like the proverbial stopped clock, Justice Antonin Scalia has to be right sometimes. And he was very right in his impassioned dissent last week [June 3] from the Supreme Court’s decision allowing police to collect DNA samples from arrestees for the purpose of investigating unsolved crimes.
The court’s 5-4 ruling in Maryland v. King found no Fourth Amendment violation in a police practice already allowed in 28 states and likely now to spread to the others. The majority opinion by Justice Anthony M. Kennedy recognized that swabbing an arrestee’s inner cheek for a DNA sample amounts to a search subject to Fourth Amendment limitations. But Kennedy said the “minimal” bodily intrusion was justified by its value in establishing the arrestee’s identity, making bail determinations, and linking an arrestee to any unsolved crimes.
As Scalia pointed out, however, the majority discarded the most important of Fourth Amendment rules: no searches for evidence of crime without an individualized suspicion that the target may be guilty of the offense. And he demolished the majority’s make-weight rationales for upholding the practice in the case at hand: the conviction of a Maryland man, Alonzo King Jr., for a rape committed six years before his April 2009 arrest on a minor assault charge.
Scalia noted that King’s identity was never in doubt, nor could DNA evidence confirm it. Nor was the DNA evidence used, or even available, when King was initially released on bail. The real purpose of collecting the DNA sample was to find out whether King could be linked to any of the cold cases in a nationwide database of crime scene evidence. The state’s claimed justification on other grounds, Scalia said, “taxes the credulity of the credulous.”
In the 30 years since DNA evidence was first used in criminal cases, it has become recognized as the gold standard of identification: more accurate than fingerprinting. Prosecutors and law enforcement love DNA evidence because it can all but conclusively tie a suspect or defendant to crime scene evidence in particular, bodily fluids from offenders in rape cases. But criminal defense and civil liberties advocates love DNA evidence as well because it can just as conclusively show that a defendant was wrongfully convicted, that someone else committed the crime.
Law enforcement groups and officials point to hundreds of cold cases solved with DNA evidence from convicted offenders and even more since states began collecting samples from arrestees as well. In the oral argument in the King case, Katherine Winfree, Maryland’s chief deputy state attorney general, claimed 75 prosecutions and 42 convictions since 2009 when persons arrested for serious offenses became subject to DNA sampling.
Justices in the majority found the number of solved crimes impressive. “Lots of murders, lots of rapes that can be solved,” Justice Samuel A. Alito Jr. remarked. But Scalia mocked the state’s claim. “If you conducted a lot of unconstitutional searches and seizures,” he told Winfree, “you’d get more convictions too.”
The three liberal justices who joined Scalia’s dissent Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan also poked holes in Winfree’s points during the oral argument. The court’s other liberal, Stephen G. Breyer, joined the majority, in line with the pragmatic approach he has taken in other Fourth Amendment cases. Also in the majority was Chief Justice John G. Roberts Jr., even though he had worried during the oral argument about extending DNA sampling to, for example, traffic offenders.
Scalia picked up the point in his dissent. There is no principle, he said, for limiting DNA samples to arrestees in serious cases. The line drawn, he warned, will not hold. He envisioned an Orwellian future of collecting DNA samples from air travelers or even elementary school pupils.
The history of DNA sampling corroborates Scalia’s fear. Collecting DNA samples from convicted offenders in a nationwide database was controversial when first proposed in the early 1990s, but Congress approved the project and courts upheld the practice. Collecting DNA samples from arrestees was controversial when Louisiana became the first state to do so in 1999. A commission appointed by the U.S. Justice Department opposed the practice, but it gradually took hold. At the Supreme Court, the Obama administration and all 49 other states joined Maryland in urging the justices to allow it.
Privacy took a beating last week in another context with disclosures that the government has been collecting vast amounts of information about telephone calls and emails from Americans in a secret program instituted under the Bush administration and continued and even expanded under President Obama. Civil liberties and privacy advocates were indignant, but Obama along with the Democratic and Republican leaders of the Senate and House Intelligence Committees insisted the programs were lawful and valuable counterterrorism tools.
Scalia himself has been no consistent guardian of privacy. He wrote the 6-3 decision in 1995 that allows random drug testing of high school athletes (Veronia School District v. Acton) and joined the later ruling extending drug screening to students in any extracurricular activities (Board of Education v. Earls, 2002). But Scalia waxed eloquent last week in invoking the spirit of the Framers in protesting expanded DNA sampling. “I doubt,” he wrote, “that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”