After the oral argument in Maryland v. King, I wrote that "[i]n the end, my money is on a 5-4 (or maybe 6-3) decision for the state." Today the Supreme Court split into the two main camps I had described. The Court, in a rather staid opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Breyer and Thomas, upheld the Maryland law that requires individuals arrested and detained for major crimes to submit DNA samples that can be checked against a database of DNA profiles from unsolved crimes. Justice Scalia, wrote a bitter and sarcastic dissent for himself and Justices Ginsburg, Kagan, and Sotomayor.
Although the question is more delicately balanced than either opinion indicates, the majority reached the correct result. To be sure, not every state wants to establish arrestee DNA databases, and there is ample room to debate whether they represent the best use of scarce resources. But the constitution leaves the option open.
The contrary argument advanced by the dissent is that the Fourth Amendment always prohibits suspicionless entries into the body to investigate a crime. The dissenters would brand these searches as “unreasonable”—no matter how minor the intrusion on the person and no matter how much the program advances the welfare of the public. Justice Scalia tartly concludes that “the proud men who wrote the charter of our liberties would [not] have been so eager to open their mouths for royal inspection.”
Perhaps not, but if the only individual interest that demands protection is the slight discomfort of swabbing the inside of a cheek, a state could collect the DNA another way, perhaps by having the arrestee place his fingers not just on a fingerprint card, but also on a sticky pad.
Ultimately, a more sensitive understanding of the Fourth Amendment is required. It should be constitutionally reasonable to acquire, analyze, store, and search biometric data without a warrant and without individualized suspicion when five conditions hold: (1) the person legitimately is detained (or the data are acquired without confining the individual); (2) the process of collecting the data is not significantly physically or mentally invasive; (3) collection proceeds according to rules that prevent arbitrary selection of individuals; (4) the biometric data are used only to establish or authenticate the true identity of a given individual or to link individuals to crime scenes; and (5) the authentication or intelligence-gathering system is valid, reliable, and effective.
Fingerprinting of arrestees satisfies these conditions. So does photography, iris scanning, and noninvasive forms of DNA collection. The sticking point for many people is that the entirety of one’s DNA contains much more sensitive information. That is surely a legitimate concern, and it is why condition (4) is critical. Any system of DNA databanks for law enforcement—before or after conviction—must have rigorous safeguards to ensure access is confined strictly to biometric data that carry no deep threat to privacy.
Unfortunately, the Supreme Court did not analyze the issue in terms of a well-defined exception to the general rule of warrants and individual suspicion. The five justices in the majority engaged in what the dissent called "free-form" balancing—an approach that, in other circumstances, could be used to balance away important individual interests. Nevertheless, the entire Court agreed that DNA sampling on arrest—a procedure adopted by most of the states, the federal government, and many other technologically advanced countries—“will have the beneficial effect of solving more crimes.” Although the dissent correctly perceived that this is the main purpose of the Maryland law, the majority also emphasized the advantages of knowing whether an arrestee is implicated in other crimes in making decisions about pretrial detention.
The clash between the majority and minority in Maryland v. King leaves many questions unresolved:
● Just how long after an arrest must the state wait to collect the DNA? Maryland waits at least until formal charges are read at a judicial proceeding known as an arraignment.
● If an arrestee’s DNA is a near miss to a profile in the unsolved crimes database, can this fact be used to focus the investigation on his parents, children, or siblings who might be full matches? Maryland forbids such “familial searching.”
● May a state collect DNA from people arrested for more minor matters? The dissent complained that the Court’s logic would allow this, but the “free-form balancing” is a vague standard.
● What if future DNA genetic research overturns the Court’s characterization of the DNA features used for identification today as “junk”?
● If the dissent is right that “[n]early one-third of Americans will be arrested for some offense by age 23” (and if what is left unstated—that disproportionately many of these youths will be from African-American, Latino, and other minority groups”—also is true), would it not be fairer to collect DNA profiles from everyone?
One thing is clear. The legislatures and courts are not finished with the constitutional and policy questions surrounding DNA databases.
Maryland v. King, No. 12-207 (U.S. June 3, 2013).
Kaye, David H. 2013. "A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases." University of Pennsylvania Journal of Constitutional Law 15(4): 1095-1160.
A condensed version of this posting appears in the BBC News blog, Viewpoints: Supreme Court and DNA Samples, BBC News: US and Canada, June 3, 2013.