In a blow to civil liberties, the Supreme Court yesterday voted 5-4 to allow police to collect DNA from suspects arrested in serious crime cases. The decision by Justice Anthony Kennedy opens the door for the collection and retention of a massive DNA databank by the states and federal government. The decision produced a strange lineup with Justice Antonin Scalia writing a dissent (with Ginsburg, Sotomayor, and Kagan) and normally liberal Justice Stephen Breyer joining Kennedy, Thomas, Alito, and Roberts. It is a disastrous case for Breyer to lose his bearings. His switch denied the creation of a bright line rule protecting privacy and forestalling such a databank.
The case involves Alonzo King Jr., who was arrested in 2009 for menacing a group of people with a shotgun. Under state law, police took the DNA sample and it was matched with a sample collected in a 2003 unsolved rape case leading to a later rape conviction. It was a telling case since critics have insisted that the samples have little to do with identification or processing a suspect, but rather investigating other crimes.
Kennedy was fairly dismissive over the intrusion of a swab and the collection of a DNA sample in his opinion. He insisted that it was much “like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” That is a bizarre claim since the DNA sample carries far more extensive information on a person and can be used to a far greater extent in future searches or testing by police. Kennedy also bought the rather implausible argument that this is merely used to confirm criminal history and identify individuals in custody. In 99.999% of case, the identity of the subject is not in dispute and easily confirmable from computer systems. This is about solving past crimes and creating a data bank for future investigations.
Where Breyer forgot his civil liberties roots, Scalia remembered his libertarians roots.
Scalia mocked (rightfully) Kennedy’s logic; “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes,” Scalia said. “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. 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.”
The court majority ruled against Alonzo King Jr., who was arrested in 2009 based on accusations he menaced a group of people with a shotgun. Police took a DNA swab of his cheek as part of a routine booking procedure for serious offenses in Maryland. The DNA profile matched a sample collected in a 2003 unsolved rape case, leading to King’s trial and conviction on the rape charge.
Under Maryland law, DNA may be collected for those arrested for offenses including crimes of violence, attempted crimes of violence, burglary and attempted burglary. Crimes of violence include murder, rape, first-degree assault, kidnapping and arson.
Kennedy said ascertaining a suspect’s identity and criminal history are critical when there is probable cause for arrest. Both serial killer Joel Rifkin and Oklahoma City bomber Timothy McVeigh were stopped for driving without a license plate, for example.
“An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment,” Kennedy wrote. Police take a mug shot and show it to witnesses; they take fingerprints and compare it to a database. “In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides,” Kennedy said.
When police use the suspect’s DNA profile to search records in their possession, it “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene,” Kennedy said. DNA collection also helps officers know the type of person they are detaining, helps determine whether a suspect has a record and is inclined to flee, and helps assess the danger to the public if the suspect is freed on bail.
“By comparison to this substantial government interest and the unique effectiveness of DNA identification,” Kennedy said, “the intrusion of a cheek swab to obtain a DNA sample is a minimal one.”
The analysis could change, Kennedy said, if technological changes make it possible to “analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity.”
Scalia’s dissent, however, predicted that the decision will eventually be extended to arrests for less serious crimes. “Make no mistake about it,” he wrote. “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
What is interesting is that Alito said in oral argument that the case was “the most important criminal procedural case that this court has heard in decades.” Most people assumed that he was speaking of the danger to individual rights, but they do not know Alito who votes almost uniformly for police powers, as he did as a lower court judge. He joined the majority in stripping citizens of protections from such searches.
The majority did what is has always done when reducing privacy or individual rights: it suggested it was ruling narrowly by stressing that this is a case involving a major felony. However, that distinction is lost on the rationale that such testing is akin to fingerprinting and simply another form of identification. Scalia’s prediction is all too likely to come true: “Make no mistake about it. As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
Here is the opinion: 12-207_d18e
The Word Press censors have begun to work on posts now.
The scientific Luddites wh made this decision were using old science of the old world, before we found out that:
anon851,
Social security numbers are not the least safe. There have been tens if not hundreds of instances of databases of social security numbers being stolen. I have receive 2 notices from companies that my number was stolen along with the numbers of thousands of other people at the same time.
I couldn’t get my driver’s license renewal until I gave them my ss#. I have always refused to give my ss# to hospitals, not they have it b/c they have my medicare #.
Military dog tags used to have unique serial numbers, then the military changed it to social security #. They changed back after it became apparent that using the ss# wasn’t a good decision.
Expect the same thing to happen with your DNA sample. It is very possibly in any number of databases being used for you don’t know what.
And don’t give me that ration of s@#$ that if I haven’t done anything wrong I have nothing to worry about. Innocent people are accused all the time. People protesting government policies are arrested on bogus charges all the time. Believe, those cops who are most brutal to the protesters are salivating at this decision.
Even you have expanded the use of the involuntarily obtained DNA beyond what the decision addressed.
“Authorizing the DNA collection from suspects may cause them to incriminate themselves on other crimes that are not subject to this particular arrest. Disturbing result.”
Raff, good point. I have not had a chance to review the decision. Was that issue (5th A) addressed therein?
To play devil’s advocate, other than Raff’s point, I am curious to hear from other commenters elaborating, more specifically, on the post as to what their specific concerns are regarding this decision and its “blow” to civil liberties.
I don’t personally feel that the act itself (i.e., the cheek swab) is intrusive, but I suppose the Prof was getting at the broader ramifications of the DNA database that may be disturbing.
What to say to those who say “so what. “Don’t commit crimes and you have nothing to worry about.”
I hate to say it but I agree with Scalia. This proves there are no liberals or progressives on the court.
bettykath 1, June 4, 2013 at 2:29 pm
“The analysis could change, Kennedy said, if technological changes make it possible to ‘analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity.’ ”
This is already possible in some instances and the identification of hereditary factors is moving very quickly, much of it being paid for with tax dollars.
=============================
Science fiction.
Darren Smith 1, June 4, 2013 at 2:27 pm
…
I can see how that might be judged to be constitutional in one regard but the information available from a DNA sample is far more revealing of the person’s makeup than just their image or finger prints.
===================================
Balony.
At the moment we know very little about it.
I have been pointing this out on this blog for years now.
“The analysis could change, Kennedy said, if technological changes make it possible to ‘analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity.’ ”
This is already possible in some instances and the identification of hereditary factors is moving very quickly, much of it being paid for with tax dollars.
Another WTF in this case is that generally neoCons are the anti-science doods in our culture at the moment.
They are anit global warming science when it is at its strongest.
Now they are pro DNA science when it is at its weakest, even using the term “junk-DNA” which is what they called 98-99% of the genome not so long ago.
Now we know it is not garbage or junk, it is microbial, the most abundant, oldest, and everywhere DNA there is.
We just don’t know about trillions of species that produce it.
We know about less than a million in a set of trillions.
Is that enough for the conservatives on the bench, and Breyer, to subvert the 4th Amendment over?
WTF?
I find it rather odd that this is required for those who haven’t been convicted. The claim that this is just part of a procedure similar to that of photographs and fingerprints, I can see how that might be judged to be constitutional in one regard but the information available from a DNA sample is far more revealing of the person’s makeup than just their image or finger prints. There is a real potential for abuse this way in the sense of datamining.
I might see another case in the future where the citizen argues the government does not have a right to the information gleaned from a DNA test that is beyond what is required for identification of the individual.
Personally, I believe it is best to collect the DNA after conviction. WA does this for felony offenses and a few misdemeanors. There is a lot of cost associated with doing DNA sampling on persons arrested for small offenses such as driving with a suspended driver license. Here is WA’s law on it.
http://apps.leg.wa.gov/rcw/default.aspx?cite=43.43.754
Justice Kennedy was also dismissive of people’s concerns with regard to big money/dark money in elections when it came to ruling in the Citizens United case.
Citizens United Ruling Brings on “Tsunami of Sewer Money”
11/3/10
http://jonathanturley.org/2010/11/03/citizens-united-ruling-brings-on-tsunami-of-sewer-money/
Excerpt:
in January, Justice Anthony Kennedy wrote: “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Karl J. Sandstrom, a former FEC commissioner who provides advice to Democrats on election law has said: “The biggest change this year is that it is no longer possible to identify the individuals who are responsible for funding election communications.” Sandstrom believes that Justice Kennedy’s opinion was naïve and reflected a “very uninformed view of how disclosure works.”
Conason thinks Kennedy and the other conservative Justices on the Court never attempted “to inform themselves about the realities of donor disclosure before overturning the century-old restrictions on corporate cash.” He contends that the Justices could have easily discovered that under Section 501 c (4) of the IRS code nonprofit groups are permitted to register as “social welfare” organizations. This allows the groups to support “independent” campaign advertising without being required to disclose the names of donors—as long as political activity is not their “primary activity.”
Anon851, so what? Try watching last night’s opening segment of All In with Chris Hayes: http://video.msnbc.msn.com/all-in-/52089074#52089074
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, BREYER, and ALITO, JJ., joined. SCALIA, J., filed a
dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ.,
joined.
There are two sides of the coin ….
I have been fingerprinted several times for security clearances either in the military or post-military for employment purposes. I was swabbed right before I left the military, honorably retired, to insure that there would be no more “Unknown Soldiers”. In every instance, I did not object because of my employment opportunities.
So you are in a DNA database, SO What …. ? There are databases now of photos of people taken as mugshots at police stations. These are been scanned electronically for facial recognition features which like DNA are almost impossible to fool a facial recognition software program. Fingerprints, while not totally infallible, offer a high success rate in identification as well. All of these are databases. Yet, we do not hear any complaints reference them.
As long as you do no criminal activity you are just a specific set of 1’s and 0’s (binary code) that identify you. Your file remains dormant until such time as either a “hit” occurs meaning you may have committed a crime or some other reason.
Potential time-saving usages:
1. Identifying human remains — children or adults lost in the wilderness, victims of crime left out in the wilderness or buried for that matter.
2. Exhonorating criminals who did not commit the crime they are incarcerated for, to include those on death row.
3. Identifying whether you are truly a citizen or not …. This has a two-fold effect — identifying people in our country here illegally or for that matter beyond their “stay” … And also since a lot of crime is perpetrated by illegals then we could identify them correctly. Anyone who has followed the illegal problem knows that among those illegals deported for whatever reason is a large percentage who in a very short time after deportation attempt reentry back into the USA and often go back to a life of crime to support themselves in this country.
4. If properly administered, a DNA database could alert doctors and nurses of specific health conditions to treat patients who are unconscious upon arrival with no other outside info.
There will be other uses as well.
The only drawback is if the database is not secured properly (just like a database of say credit card numbers exposed to the public or used by criminals as we all know happens). As long as a DNA is not misused and its security handled properly, the benefits of identifying innocent victims, clearing incarcerated prisoners who may be innocent etc., the good definitely outweighs the bad.
One side story, in terms of the background of Justices, is Justice Breyer who went with the conservatives (except Scalia).
All the other non-conservatives went with Scalia.
Clearly the 4th Amendment legal analysis concerning prescedent and the background reality for Madison’s including the 4th Amendment in the Bill of rights favors the dissent.
But what troubles me is that the revolutionary DNA science of late.
The DNA was taken in 2009.
In the time since a virtual scientific revolution in the understanding of “human DNA” has taken place.
We now realize that 1-2% of our DNA is “human” and that 98% or more is microbial.
Yet we know very little about microbial species in terms of identifying them by their DNA (see Microbial Languages: Rehabilitation of the Unseen and papers cited therein).
Since we know very little about the microbial realm (includes viruses) that make up the 98-99% of the DNA we call “human”, I argue that it is reckless to base national law on that science AT THIS TIME.
I’ve been surprised at how many “liberals” on several blogs have been just fine with this ruling. I’m not fine with it at all. Credit to Scott Lemieux writing at The American Prospect, He gets it:
A very bad court decision. This is going to make it very easy to worngfully accuse and convict anyone of any crime. However, there is a solution: can the US Congress pass legislation to overrule or modify the Supreme Courts’ decision (I can’t remember the Article/Section of the US Constitution where the checks & balances applies to all the Courts, including the US Supreme Court).
It is a scary day when I agree with Justice Scalia, but he is right. This is a horrible decision that will impact all of us. I think the dissent should have asked for every Supreme Court Justice who voted in the majority to provide the FBI their DNA. Authorizing the DNA collection from suspects may cause them to incriminate themselves on other crimes that are not subject to this particular arrest. Disturbing result.
The link is broke cause the vandas took the handles.
Here is another link: Maryland v King.
I am with Scalia and the dissent.