Posted on Jun\u00a013,\u00a02013<\/h4>\n\n<\/p>\nBy Eugene Robinson<\/p>\n
WASHINGTON\u2013The Supreme Court\u2019s ruling last week allowing police to compel DNA samples from persons arrested for serious offenses will solve cold cases around the country, putting dangerous criminals behind bars. But despite this clearly beneficial impact, the court\u2019s 5-4 ruling was wrong\u2013and may be more far-reaching than we can now imagine.<\/p>\n
The words \u201cAntonin Scalia was right\u201d do not flow easily for me. But the court\u2019s most uncompromising conservative, who wrote a withering dissent, was correct when he issued a dire-sounding warning from the bench: \u201cMake no mistake about it: Because of today\u2019s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.\u201d<\/p>\n
The case, involving a Maryland law that mandates DNA collection, scrambled the court\u2019s ideological seating chart. Scalia, of all people, sided with the liberals; while Justice Stephen Breyer, a liberal, joined the conservative majority.<\/p>\n
Maryland v. King was an appropriate test case. A man named Alonzo King was arrested in 2009 on an assault charge. Police in Wicomico County took a DNA sample by swabbing the inside of his cheek\u2013without obtaining a search warrant\u2013as permitted under Maryland law. Months later, King\u2019s DNA profile was matched with evidence from a 2003 rape case. King was subsequently tried and convicted of the rape.<\/p>\n
It\u2019s impossible not to applaud the result: A rapist who otherwise would have escaped justice was made to pay for his heinous crime. But the way this result was obtained, Scalia argued, ignores the Constitution.<\/p>\n
The Fourth Amendment prohibits most warrantless searches without reasonable suspicion, and police had no reason to suspect that King had committed the rape\u2013or that he had committed any crime except the assault for which he had been arrested.<\/p>\n
Writing for the majority, Justice Anthony Kennedy accepted the state\u2019s argument that the DNA sample was actually a method of identification\u2013like a mug shot or a set of fingerprints\u2013and not an unreasonable search. With all due respect, this is a bunch of hooey. As Scalia put it, Kennedy\u2019s argument \u201ctaxes the credulity of the credulous.\u201d<\/p>\n
Before the DNA test was even performed, police knew perfectly well who King was. They had his name, address, date of birth, height, weight, eye color, you name it. No question had been raised about his identity.<\/p>\n
Months elapsed before King\u2019s DNA was entered into a national database. If identity were the purpose for collecting the sample, you\u2019d think it would be compared with the DNA of people who looked like King or had a similar name. Instead, it was compared with DNA samples collected at the scenes of unsolved crimes.<\/p>\n
In other words, the obvious purpose of collecting the DNA sample was to solve cold cases. This is an admirable goal. But there\u2019s that pesky Fourth Amendment.<\/p>\n
\u201cSolving unsolved crimes is a noble objective,\u201d Scalia wrote, \u201cbut it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.\u201d<\/p>\n
I don\u2019t pretend this is an easy case. My first reaction would be to try to find some way to uphold King\u2019s conviction\u2013and give police a way to catch others who believe they\u2019ve gotten away with crimes such as rape or murder. But the court\u2019s solution is based on the kind of jury-rigged legal reasoning that can end up creating more problems than it solves.<\/p>\n
The ruling upholds laws already in place in 28 states; I imagine most or all of the rest will soon pass DNA laws of their own. If DNA collection is allowed for suspects arrested for alleged felonies, why not misdemeanors? Why not, for that matter, whenever police stop someone whose identity is deemed questionable because of, say, an expired driver\u2019s license?<\/p>\n
I realize that the law must come to terms with DNA and its unique power as evidence. I realize this will be an awkward and uncomfortable process. But we should move forward with both the letter and the spirit of the Constitution in mind. As Scalia notes, the Founders \u201cwould not have been so eager to open their mouths for royal inspection.\u201d<\/p>\n
In that spirit, before we give police such a broad right to compel DNA testing to put individuals in prison, we should at least guarantee that individuals who are incarcerated have a similar right to DNA testing that might exonerate them. And we should be honest about why we\u2019re making people say \u201cAaaaah.\u201d<\/p>\n
Eugene Robinson\u2019s e-mail address is eugenerobinson(at)washpost.com.<\/i><\/p>\n
\u00a9 2013, Washington Post Writers Group<\/small>\n<\/p>\n
![\"\"](\"http:\/\/www.truthdig.com\/images\/eartothegrounduploads\/480px-Antonin_Scalia_official_300.jpg\")
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Wikimedia Commons \/ Supreme Court of the United States<\/p>\n
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By Eugene Robinson<\/p>\n
WASHINGTON\u2013The Supreme Court\u2019s ruling last week allowing police to compel DNA samples from persons arrested for serious offenses will solve cold cases around the country, putting dangerous criminals behind bars. But despite this clearly beneficial impact, the court\u2019s 5-4 ruling was wrong\u2013and may be more far-reaching than we can now imagine.<\/p>\n
The words \u201cAntonin Scalia was right\u201d do not flow easily for me. But the court\u2019s most uncompromising conservative, who wrote a withering dissent, was correct when he issued a dire-sounding warning from the bench: \u201cMake no mistake about it: Because of today\u2019s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.\u201d<\/p>\n
The case, involving a Maryland law that mandates DNA collection, scrambled the court\u2019s ideological seating chart. Scalia, of all people, sided with the liberals; while Justice Stephen Breyer, a liberal, joined the conservative majority.<\/p>\n
Maryland v. King was an appropriate test case. A man named Alonzo King was arrested in 2009 on an assault charge. Police in Wicomico County took a DNA sample by swabbing the inside of his cheek\u2013without obtaining a search warrant\u2013as permitted under Maryland law. Months later, King\u2019s DNA profile was matched with evidence from a 2003 rape case. King was subsequently tried and convicted of the rape.<\/p>\n
It\u2019s impossible not to applaud the result: A rapist who otherwise would have escaped justice was made to pay for his heinous crime. But the way this result was obtained, Scalia argued, ignores the Constitution.<\/p>\n
The Fourth Amendment prohibits most warrantless searches without reasonable suspicion, and police had no reason to suspect that King had committed the rape\u2013or that he had committed any crime except the assault for which he had been arrested.<\/p>\n
Writing for the majority, Justice Anthony Kennedy accepted the state\u2019s argument that the DNA sample was actually a method of identification\u2013like a mug shot or a set of fingerprints\u2013and not an unreasonable search. With all due respect, this is a bunch of hooey. As Scalia put it, Kennedy\u2019s argument \u201ctaxes the credulity of the credulous.\u201d<\/p>\n
Before the DNA test was even performed, police knew perfectly well who King was. They had his name, address, date of birth, height, weight, eye color, you name it. No question had been raised about his identity.<\/p>\n
Months elapsed before King\u2019s DNA was entered into a national database. If identity were the purpose for collecting the sample, you\u2019d think it would be compared with the DNA of people who looked like King or had a similar name. Instead, it was compared with DNA samples collected at the scenes of unsolved crimes.<\/p>\n
In other words, the obvious purpose of collecting the DNA sample was to solve cold cases. This is an admirable goal. But there\u2019s that pesky Fourth Amendment.<\/p>\n
\u201cSolving unsolved crimes is a noble objective,\u201d Scalia wrote, \u201cbut it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.\u201d<\/p>\n
I don\u2019t pretend this is an easy case. My first reaction would be to try to find some way to uphold King\u2019s conviction\u2013and give police a way to catch others who believe they\u2019ve gotten away with crimes such as rape or murder. But the court\u2019s solution is based on the kind of jury-rigged legal reasoning that can end up creating more problems than it solves.<\/p>\n
The ruling upholds laws already in place in 28 states; I imagine most or all of the rest will soon pass DNA laws of their own. If DNA collection is allowed for suspects arrested for alleged felonies, why not misdemeanors? Why not, for that matter, whenever police stop someone whose identity is deemed questionable because of, say, an expired driver\u2019s license?<\/p>\n
I realize that the law must come to terms with DNA and its unique power as evidence. I realize this will be an awkward and uncomfortable process. But we should move forward with both the letter and the spirit of the Constitution in mind. As Scalia notes, the Founders \u201cwould not have been so eager to open their mouths for royal inspection.\u201d<\/p>\n
In that spirit, before we give police such a broad right to compel DNA testing to put individuals in prison, we should at least guarantee that individuals who are incarcerated have a similar right to DNA testing that might exonerate them. And we should be honest about why we\u2019re making people say \u201cAaaaah.\u201d<\/p>\n
Eugene Robinson\u2019s e-mail address is eugenerobinson(at)washpost.com.<\/i><\/p>\n
\u00a9 2013, Washington Post Writers Group<\/small>\n<\/p>\n
<\/p>\n
Wikimedia Commons \/ Supreme Court of the United States<\/p>\n
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