The Supreme Court’s Monday ruling in Maryland v. King upheld Maryland’s law permitting the compulsory collection of DNA samples from people arrested—but not yet convicted—on suspicion of certain crimes: violence, burglary or attempts at either. This latest extension of law over liberty means that innocent and guilty people alike will be subject to unwarranted DNA swabs.
Martin O’Malley signed the initiative allowing DNA swabs for convicted persons in the name of public safety and justice. In 2009, Alonzo Jay King Jr. was arrested on assault charges. Under O’Malley’s law, the Police collected King’s DNA. It matched a sample from an unsolved 2003 rape case, and King was convicted. He appealed the decision on the grounds that that the police violated his Fourth Amendment protections against unlawful searches and seizures.
Justice Anthony Kennedy’s justification is that DNA collection is in the “legitimate government interest” because police need to be able to accurately process and identify the person with their arrest record so as to decide whether to release him on bail. After all, DNA matches from genetic material are more accurate than fingerprint matches.
Scalia refuted Kennedy’s argument in a statement: “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.” Scalia chose to speak from the bench, a non-standard practice that revealed his strong feelings on the issue.
He explained that in King’s situation, the state of Maryland was not collecting DNA to establish King’s identity—because that was already known—but rather only to incriminate him. Furthermore, because DNA tests take multiple weeks, Kennedy’s assertion that the results factor into the decision to release the person on bail is unreasonable.
While Maryland’s law is limited to persons charged with violence and burglary, the majority decision does not limit other states from passing broader laws. “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,” Scalia warns.
If DNA is treated the same as fingerprints, then anyone who attends public school, applies for a driver’s license, or flies on an airplane could be subject to DNA collection, Scalia points out. Furthermore, Maryland’s law may have other unintended consequences. For example, a greater volume of DNA testing might needlessly increase law enforcement expenditures, and the informational overload could slow investigators who now have to sift through the DNA of the guilty and the innocent combined. More access to genetic information doesn’t necessarily mean more efficient police work.
Furthermore, Slate reports that there is no evidence to suggest that creating a “genetic panopticon” means that more cases will be solved. Instead, statistics show that collecting more DNA evidence at crime scenes results in more solved cases. For example, from 2010 to 2012, California halved the average number of offender profiles uploaded per month, but kept number of samples collected at crime scenes the same. The result? Increased database hits.
Nevertheless, the government has already collected DNA from 1.3 million arrested suspects and 10 million convicted people, according to FBI data. Based on the Supreme Court’s ruling, it seems that the Fourth Amendment no longer protects you from unwarranted searches of your DNA.