Late in Voltaire’s book, Candide, we meet a Venetian nobleman called Signor Pococurante, who, as his name indicates, cares little for anything – great art, excellent music, brilliant literature, beautiful gardens, or gorgeous women. With regard to the Supreme Court’s two DNA cases this term, I feel a bit like Signor Pococurante – I don’t much care. (Happily, I do not share his disdain for other good things.)
The Supreme Court released its decision today in Maryland v. King, finding, by a five to four vote, that Maryland’s statute requiring people arrested of certain felonies to provide a DNA sample at arrest, so that the arrestee’s DNA profile could be included in the state, and ultimately federal, DNA forensic database does not violate the Fourth Amendment to the federal constitution. And, rather oddly, I find I don’t much care. Here’s why.
First, the case involved a close question. The Fourth Amendment says the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As every first year law student struggles with, the words “reasonable” and “unreasonable” are two of the most used, useful, and useless words in the legal lexicon. What is “reasonable”? It depends.
Here, the intrusion, a “buccal swab” (think Q tip run along the inside of the mouth), is trivial. It may help the police learn something about the arrested person that could be useful in solving other crimes, or, less likely, in dealing with him in this crime. Any loss of privacy to the arrestee – beyond his possible connection to other crimes – is speculative at most and, as long as existing procedures are used and existing law is followed, asymptotic to zero in reality. On the other, the person was not arrested for those other possible crimes and, minor as the intrusion is, the dissent, in the inimitable voice of Justice Antonin Scalia, has a point when it says that “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 strongest argument for the majority was that this kind of DNA analysis is nothing more, really, than a better form of mug shots or fingerprints, procedures that have been allowed at arrest for many decades. The respondent (Mr. King) and various amici make much of the ways in which DNA is more than fingerprints, but, at least if limited to the uses that police now make of DNA samples – and that the law restricts them to – that really is fair. (Disclosure – I helped Professor David Kaye write an amicus brief, “supporting neither side,” that laid out the relative uninformativeness of the CODIS markers into which forensic DNA samples are currently analyzed.)
The strongest argument for the dissent is that fingerprints and mug shots are supposed to be used for identification and that DNA is NOT being used for “identification” in the normal sense of that term. “Identification” typically means finding out whether the person in the cell really is, say, Ephraim Gadsby of the Nasturiums, Jubilee Road, Streatham Common, and not Bertram Wilberforce Wooster of Mayfair. It does not usually mean finding out whether the person in the cell should be a serious suspect in other crimes. Yet that, as the dissent points out, is what DNA collected from arrestees is mainly used for. The analysis is almost always done too late to be of any help in deciding whether to hold the prisoner, release him on his own recognizance or on bail – it takes several weeks, if not months, to get DNA profile back from the overburdened and under-resourced crime labs. The dissent points out that one might as well search an arrestee’s home, without a warrant, for evidence of other crimes because that is, in effect, what the DNA sample is used for.
But . . . the DNA sample can sometimes be used in ways relevant to this address, notably in release and in bail decisions. One really might want to deny bail to a person arrested for a bar fight whose DNA matches that from 14 unsolved rape murders might – and, in fact, that kind of thing occasionally happens today. And should happen much more frequently in the future as the time and expense of DNA analysis gets shorter. And if there is one legitimate reason for the police to do something, they have long been allowed to use information gained in that legitimate purpose for other ends. If you are stopped for speeding and the highway patrolman happens to notice a corpse in the back seat of your top-down convertible, he does not have to ignore it.
Adding to this point is the reality that mug shots, and, more importantly, fingerprints weren’t really used or useful for “identification” before 1999, when the FBI managed to come up with a good computerized way of categorizing and then searching fingerprints. (Oddly, both fingerprints and DNA are mainly useful today thanks to computers – without computers, 10.5 million DNA profiles wouldn’t be useful at all.) They weren’t used for “identification” in the dissent’s sense – and when they could, after 1999, be used for identification they could, and were, also used to look for evidence that connected the arrestee with other crimes. The dissent’s response seems accurate, but a bit lame:
The Court asserts that the taking of fingerprints was “constitutional for generations prior to the introduction” of the FBI’s rapid computer-matching system. Ante, at 22. This bold statement is bereft of citation to authority because there is none for it. The “great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence” and so we were never asked to decide the legitimacy of the practice.”
Well, yes . . . but the routine mandatory use of fingerprinting continued well into “the modern era of Fourth Amendment jurisprudence” and the fact that no defense attorney, hard up for a defense, thought to argue her client’s mandatory fingerprinting at booking, which led then to arrest and conviction for another crime, was unconstitutional – in the Supreme Court or, as far as we are told, in any other court the length and breadth of the country, surely says something about the constitutionality of the issue.
The dissent also launches a slippery slope argument, arguing that
At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” 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.
But, of course, in a much more famous (and useful) quotation from a person who, as a Supreme Court justice, was an even more striking prose stylist than Justice Scalia, “The life of the law has not been logic. It has been experience.” If the Court wants to exempt traffic violations from DNA collection, it can – and will. That’s part of the fun of being the Supreme Court.
My deeper problem, though, with Scalia’s horribles parade, is that it doesn’t seem that horrible to me. Personally, I hope, and expect, that at some point in the not too distant future, there will be public databases with identifying DNA information on each of us. Unidentified bodies, paternity suits, and unsolved crimes would all benefit, at little or no real harm. In 20 to 30 years, when DNA has become routine, and not ‘scary magic,” I think something close to this will come to pass, either openly, though requirements for DNA samples for some government programs for which identification is useful (Social Security, Medicare, drivers licenses, for example), or through the backdoor of police access to electronic health records that contain our whole genome sequences. If that means that someone – even me – who should be a suspect in a crime is investigated for that crime . . . well, I can live with that. If properly governed, such a world seems much less scary that the existing possibilities of electronic surveillance – you learn infinitely more about me from my credit card charges or Google searches, let alone from a GPS on my car, than you would from my DNA profile. (And, frankly, for most of us, even from our whole genome sequence.)
That said, I think the dissent had some good arguments, as did the majority, but they did not make all the arguments. I myself in 2004 voted against California’s Proposition 69, the California version of mandatory arrestee DNA collection. I did so because, to me, suddenly expanding the “convicts only” provision to “convicts and arrestees” undercuts our presumption of innocence. But no one made that argument in this case, as the cultural power of the presumption of innocence is not a constitutional argument except when it involves jury instructions or lawyers arguments at trial. I would prefer either a convicts only database or a universal database. But, as to whether the notoriously fuzzy Fourth Amendment allows or forbids collection of DNA from arrestees – I just don’t much care.
A few last “inside baseball” points.
It’s nice for me to be able to read Justice Scalia’s prose in a context where his substantive position doesn’t make me cringe. I don’t think his writing style is wise – I suspect it costs him more votes than it gains him – but it is fun to read, complete with capitalized (as divine?) “the Founding.” (At least he didn’t capitalize the “the”.)
It is also a nice lesson for the public that a 5 to 4 decision can involve (mostly) conservatives on one side and (mostly) liberals on the other side but not entirely. I suppose I could look it up somewhere (somewhere in cyberspace there must be a U.S. Supreme Court – I refuse to say “SCOTUS” – web site that provides the equivalent of the Elias Sports Bureau’s information on how many times a left-handed batter who last named starts with “Z” has struck out three times in a night game), but I wonder how often, if ever, Justice Scalia has written an opinion joined by Justices Ginsburg, Sotomayor, and Kagan – and only Justices Ginsburg, Sotomayor, and Kagan! Scalia’s vote was no surprise, either from the oral argument or from his history on Fourth Amendment issues (see Kyllo on infrared detectors), but it was interesting.
On the other hand, “liberal” Justice Breyer voted with the “conservatives.” Why? I think at heart Justice Breyer is a technocrat and a sciencephile, not sciencephobe – which, as a fellow cardiac technocrat and sciencephile, I say without malice – and he thinks DNA testing is a good thing. In a close case, that pushed him to the “conservative” side.
I thought the oral argument presaged a surprising line-up (though I also expected more than two opinions). As I read it, I thought I saw four clear votes – those of Justices Scalia, Breyer, Alito, and Sotomayor – but I had (accurately) Scalia and Sotomayor together for the criminal and Breyer and Alito together for the state. Roberts, Kennedy, Ginsburg, and Kagan all talked, but not enough for me to be confident where they would come out. And Justice Thomas’s comments were their usual non-communicative, and non-existent, selves. I could have seen it come out anything from 7-2 to 2-7, in either direction, though, through the retrospectoscope (the world’s best medical instrument and something we law people should steal), 5/4 for the state seems most likely. Not likely to everyone – 10 days ago I heard a law professor expert on this issue predict confidently a win for King.
One last point – there are several other cases out there, arising under somewhat different status. Notably, the Ninth Circuit had heard arguments, en banc, in Haskell v. Brown, a challenge to California’s statute. It suspended consideration of that case when the Supreme Court agreed to hear Maryland v. King. It will not have to decide that case, but how? The Maryland statute provides for mandatory expungement of the DNA profile should the arrestee not be convicted; the California statute provides a kludgy process for the arrestee to file a form to get the information expunged. That’s a difference. Is it important? The Supreme Court mentioned Maryland’s automatic expungement provision, but didn’t stress it. Could the Ninth Circuit en banc follow what most observers thought was its tendency after the en banc argument and strike down the California statute even after Maryland v. King? Sure. But at its own risk. One vote might shift at the Supreme Court based on the lack of mandatory expungement, but I don’t see who it would be.
For someone who doesn’t care much about the result in Maryland v. King, I’ve certainly managed to write a lot of words about it. I wonder how many words I’ll write about Association for Molecular Pathology v. Myriad Genetics, Inc., after it comes down – another case I don’t think I care much about. (Should we start a pool?) Rejoin us later this month and see!