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RED-BLUE AMERICA: When is it OK for police to take DNA?

on June 10, 2013 10:30 AM

The Supreme Court ruled last week that police, when they’ve arrested someone for a “serious crime,” may take a DNA sample of the arrestee and check it against a national database of cold crimes. Defenders of the process say it’s no different than taking a picture or the fingerprints of an arrestee; critics say it’s invasive enough to violate the Fourth Amendment prohibition on unreasonable searches and seizures.

Who is right? Joel Mathis and Ben Boychuk, the Red-Blue America columnists, debate the issue.


 

MATHIS: Want to see something rarer than a solar eclipse? Watch me type this sentence: “Antonin Scalia is right.” How often is that going to happen?

But in this case, it’s deserved: Scalia joined three liberals who voted against the court’s DNA ruling, and wrote the blistering dissent.

The problem with the court’s ruling, as Scalia points out, is that there’s little to limit it: Yes, the court said DNA should only be collected in the case of “serious” offenses, but it didn’t define just how serious those offenses should be.

“The (court majority) repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for ‘serious offense(s),’” Scalia wrote. “I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense.”

Which is probably what will happen, Scalia wrote. “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.”

If that sounds paranoid, consider this: News broke Wednesday that Verizon has been giving the government data on every single call in its system — the communications information of millions of Americans collected “indiscriminately and in bulk.” As the government’s power to intrude into your life expands, paranoia may be entirely rational.

Does that sound like the kind of America you want to live in?

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes. ... Perhaps the construction of such a genetic panopticon is wise,” Scalia concluded. “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.”


BOYCHUK: Scalia is usually right on the Constitution and on the law. And his dissenting opinions are often a glory to behold. When Scalia finds himself with the Supreme Court’s liberal bloc on a question, people are right to take notice.

 

But while much of the commentary about the court’s DNA ruling has focused on Scalia’s sharp dissent, there hasn’t been much clarity about what the five-justice majority actually said.

Contrary to Scalia, the court certainly did not say police could take DNA samples from anyone or for any reason. The justices, in fact, were careful to limit their ruling to the strictures of Maryland’s DNA law. Police can only take DNA from people arrested for certain well-defined felonies. Period.

The court has said, for better or worse, that people in police custody have “no reasonable expectation of privacy.” What’s more, courts have long recognized that police will use information they have to connect the dots to other crimes.

But if you’re arrested and — here’s the important part — eventually acquitted in Maryland, authorities are required to expunge your DNA file.

Yes, they’ll still have your fingerprints and your mug shot. That’s true everywhere. Even though, as Scalia notes in his dissent, the court has never addressed the constitutionality of fingerprinting, nobody today would seriously argue that fingerprinting or photographing are “unreasonable” under the Fourth Amendment.

Collecting DNA is hardly unreasonable, either. Fact is, DNA is far more accurate than fingerprints when it comes to identifying criminals — and exonerating the innocent.

Truth is, government is in many respects too big and too powerful to be safe. Could DNA testing be abused? Certainly, just like any other technology.

But nobody should suppose Maryland v. King is the last word on DNA and law enforcement. Legislatures also have a thing or two to say on the question.

Conservatives rightly deplore judges legislating from the bench. Ultimately, how we choose to use DNA to solve crimes or anything else is a political decision. The public, not nine unelected judges, will have the last word.

Reach Ben Boychuk at bboychuk@city-journal.org; Joel Mathis at joelmmathis@gmail.com.

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