Co-authored with Erin Murphy, a professor of law at New York University School of Law
When the Supreme Court ruled yesterday in Maryland v. King, a 5-4 decision, that the Constitution allows police to take DNA from arrestees, the majority opinion planted seeds that can ripen into what privacy advocates long foretold: routine, possibly universal, collection of DNA from people regardless of whether police have any reason to suspect them of criminal activity. How can this be?
The Supreme Court's opinion at first seems quite mundane. Justice Kennedy emphasizes that taking DNA from people arrested for crimes, and then entering that DNA in the national databank, is no different than what police routinely do to identify and book arrestees using fingerprints and a mugshot. But if all that is at stake is a 21st-century fingerprint, then why did Justice Alito at oral argument call the case "perhaps the most important criminal procedure case that this Court has heard in decades"? The answer is subtle, which may explain why the case has not received much public attention or public outcry. But that may change once three grave implications begin to sink in.
First, although Maryland's law was limited to collection from those arrested for "serious" offenses, it never defines that term. And in fact, nothing in the opinion suggests that this limitation is of constitutional importance. In fact, the opinion's reasoning suggests the contrary.
Justice Kennedy gives three examples of the benefit that arrestee sampling might afford to law enforcement, and and all three refer to stops for traffic violations (driving without a license and speeding). Furthermore, the opinion's reasoning talks about how low-level offenders may be guilty of more serious crimes, and how law enforcement in such situations may rightly use DNA to find out who they are "dealing with."
That reasoning transparently suggests that all arrestees should be swabbed for DNA -- lest that jaywalker turn out to be a Tsarnaev. Moreover, the Supreme Court has time and again affirmed the discretion of law enforcement officers to bring the charges they deem supported by probable cause. Given the breadth and flexibility of criminal statutes, we can expect that a lot more offenses that might have been charged as misdemeanors will instead be labeled felonies in order to qualify for DNA collection. In fact, that is what happened in the King case itself. Expect a spike in felony arrests, if police take the hint and use those "serious" charges just to get more of our DNA.
To make matters worse, nothing in the King opinion appears to limit taking DNA samples only from those whose arrests were validated by a judge (as only 11 states currently require). Rather, the repeated reference to the "booking exception" and the need for those at the station house to know who they are "dealing with" suggest that no such restriction applies. That means that police will likely make their arrests, run the DNA, and check for a match long before the wrongly accused has a chance to appear before a judicial officer to cry foul. In fact, in a peculiar endorsement of our flawed system, Justice Kennedy relies on the well-documented problems in processing bail and release to support the claim that, although delays prevent the expeditious processing of samples, so too are release and bail decisions delayed -- which apparently in the Court's logic adds up to no harm, no foul.
Second, although the majority makes a customary nod to the fact that the current genetic information that is typed for forensic purposes is non-sensitive, the Supreme Court does not suggest that this is a constitutionally imposed limit. In fact, the opinion assuages those worried about intrusive testing by citing to the supposed safeguard of statutory language that limits DNA testing to analysis for "identification purposes" only. But the very holding in Maryland v. King redefines the meaning of "identification" to encompass "more than just [a] name or Social Security number." In the Court's view, identity extends to include a "record of violence or mental disorder," as well as the "defendant's family ties, employment status and history, financial resources, reputation, character, and mental condition... " Even now, the portions of DNA examined for forensic DNA typing are used to provide information about a person's family ties. Primitive research also links the MAOA gene to antisocial behavior. Assuming still more sophisticated tests for genetic markers for mental illness, sexual deviance, or violence develop, it would seem that the majority's reasoning clears the path for testing of genetic samples for these same useful "identification purposes" approved in the opinion.
Justice Scalia warned that the majority's logic foretells a "genetic panopticon" and would justify demanding "DNA samples from anyone who flies on an airplane... , applies for a driver's license, or attends a public school." He is right. If "identity" includes past and future criminality, then surely the government has an interest in your DNA when it awards professional licenses, doles out Medicare or Medicaid benefits, awards student or mortgage loans, and the like. That's why it is a mistake to equate DNA testing to a 21st-century fingerprint. DNA is not primarily used, like fingerprints are, to see if a person arrested is a known offender. Instead, samples are taken and typed and put not just into a known offender database, but also run against a database containing all unsolved crime scene DNA profiles. And it stays in the database for perpetuity, where every Monday morning it is automatically checked against any future unsolved crimes.
In the end, you might ask: What is so wrong with crime solving? Don't we want to solve crimes past, present and future? Of course we do. But if you want to solve crimes, collecting DNA from arrestees is not the right way. First, as we have written previously, resources expended on arrestees would be far better spent collecting and testing DNA samples from actual crime scenes, to solve actual crimes. Second, the resources expended on testing arrestees would be better spent on much needed improvements to quality control of our crime labs. The newspapers are filled with daily accounts of fraud and errors in forensic testing; those stories should give us caution before expanding the pool of potential victims of mishandled samples.
Third, where does this leave our Constitution? Most fans of crime scene shows think of warrants and suspicion as the hallmark of constitutional constraints on police behavior, because for over two hundred years they have been. There have been rare encroachments on that principle in specific cases where police were acting with interests beyond "ordinary law enforcement" -- such as getting intoxicated drivers off the road or supervising probationers and parolees. But contrary to what some who think the Court was right in King have suggested, like professors Akhil Amar and Neal Katyal, the Constitution never gave unfettered authority to police to search a person for evidence of crime. Indeed, the first organized police force was not established until after the Founding, so constitutional values must be understood in light of a present reality of a complex of tasks that dedicated police officers undertake. And while one view of the Fourth Amendment is that it is chiefly concerned with reasonableness, the definition of "reasonable" has always meant "with suspicion" when it came to police acting primarily in their crime-solving role. That is why the Constitution tolerates a random checkpoint to see if a driver is sober (primary purpose being highway safety), but not a checkpoint to search you or your car for contraband (primary purpose being crime-solving).
King thus represents something bigger than DNA. It indicates a shift in the way the Court conceives of the Fourth Amendment. That is evident in the majority's startling need to clarify that this new unbridled authority did not extend to suspicionless searches of an arrestee's home or to conducting invasive surgery.
It is further telling that three Justices in the majority in the King case were the very same justices who rejected the argument that the Due Process Clause gives a convicted offender the freestanding right to test DNA. It is an odd view of the Constitution that allows the police to swab just about anyone, but if a prisoner wants to get DNA testing to potentially prove innocence -- tough luck.
So for now, it seems that a majority of Justices agree that the "touchstone of the Fourth Amendment is reasonableness, not individualized suspicion," with the important addition that this "reasonableness" test applies to all law enforcement behavior -- including the traditional role of investigating crime. And if you think that the safeguard of an arrest will constrain police discretion, think again. This is the same Supreme Court that declared that arrests for a non-jailable offense like driving without a seatbelt is constitutional and that has affirmed the right of police to make stops for pretextual reasons. Our criminal code is so generous that you can be arrested for playing your music too loud, walking your dog off-leash, having an expired registration, or not having a bell on your bicycle. And if so, you may have to fork over your entire genetic code. That's the problem with reasonableness: Everything looks "reasonable" to someone, especially in a certain light.
Brandon and Erin wrote a friend-of-the-court brief in Maryland v. King.