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ROBINSON: On DNA, Scalia was right

Eugene Robinson

Eugene Robinson

WASHINGTON -- The Supreme Court's 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's 5-4 ruling was wrong -- and may be more far-reaching than we can now imagine.

The words "Antonin Scalia was right" do not flow easily for me. But the court's most uncompromising conservative, who wrote a withering dissent, was correct when he issued a dire-sounding warning from the bench: "Make no mistake about it: Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason."

The case, involving a Maryland law that mandates DNA collection, scrambled the court's ideological seating chart. Scalia, of all people, sided with the liberals; while Justice Stephen Breyer, a liberal, joined the conservative majority.

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 -- without obtaining a search warrant -- as permitted under Maryland law. Months later, King's DNA profile was matched with evidence from a 2003 rape case. King was subsequently tried and convicted of the rape.

It's 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.

The Fourth Amendment prohibits most warrantless searches without reasonable suspicion, and police had no reason to suspect that King had committed the rape -- or that he had committed any crime except the assault for which he had been arrested.

Writing for the majority, Justice Anthony Kennedy accepted the state's argument that the DNA sample was actually a method of identification -- like a mug shot or a set of fingerprints -- and not an unreasonable search. With all due respect, this is a bunch of hooey. As Scalia put it, Kennedy's argument "taxes the credulity of the credulous."

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.

Months elapsed before King's DNA was entered into a national database. If identity were the purpose for collecting the sample, you'd 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.

In other words, the obvious purpose of collecting the DNA sample was to solve cold cases. This is an admirable goal. But there's that pesky Fourth Amendment.

"Solving unsolved crimes is a noble objective," Scalia wrote, "but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."

I don't pretend this is an easy case. My first reaction would be to try to find some way to uphold King's conviction -- and give police a way to catch others who believe they've gotten away with crimes such as rape or murder. But the court's solution is based on the kind of jury-rigged legal reasoning that can end up creating more problems than it solves.

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's license?

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 "would not have been so eager to open their mouths for royal inspection."

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're making people say "Aaaaah."

Eugene Robinson is an associate editor and columnist for The Washington Post. Email him at eugenerobinson@washpost.com. For archived columns, go to www.gwinnettdailypost.com/eugenerobinson.

Comments

kevin 1 year, 3 months ago

Good court decision my friend. The more DNA can put criminals behind bars the safer the public will be. Cold cases need justice to be served no matter how long it takes. Misdemeanor DNA is not far behind. The Feds already are lying about our privacy rights being broken, so maybe it is time for all convicted persons to give up their DNA. Better tracking to reach justice for the victim(s) much earlier.

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sullivanjc 1 year, 3 months ago

The problem, Kevin, is it's not just convicted persons whose DNA and fingerprints get kept. If you are arrested and NOT later convicted, that information is still kept on file. It generally requires a court order to remove them and even then it's often not actually removed but instead "sealed". This ruling opens the door to a lot of minor/false arrests for the purpose of building a DNA database and I expect a lot of that would fall on the poor and minorities.

I also fail to see the logic of justifying a further intrusion into privacy on the grounds that it has already been broken.

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FordGalaxy 1 year, 3 months ago

I don't often agree with Eugene Robinson, but here I do. The man in question was not suspected of any crime other than the assault for which he was arrested. How would you like it, Kevin, if you were arrested for some low-level crime, and the officers came in and took a DNA sample to run against every other crime in the database? If they had reasonable cause, they should've obtained a warrant for a DNA smaple. But they didn't. His DNA was collected, and then it sat in limbo for several months before being input into the database and coming back with a positive hit. I have no qualms with getting a rapists out of society. I don't like bending and breaking the Constitution to do so. Once you bend the rules of the Constitution one time, each successive time gets easier.

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keleko 1 year, 3 months ago

You can replace DNA with fingerprints and change nothing else in your article. We know exactly who King is without fingerprints, too. No one is complaining about Fourth Amendment rights when those are taken. DNA seems just another type of fingerprint. It's something you may leave behind in a crime that identifies you. So unless criminals start leaving their name, address, and eye color behind, DNA is the best we have to go with.

Yes, we should use it to exonerate the innocent as well. It should work both ways.

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notblind 1 year, 3 months ago

Eugene, he write : "Writing for the majority, Justice Anthony Kennedy accepted the state's argument that the DNA sample was actually a method of identification -- like a mug shot or a set of fingerprints -- and not an unreasonable search. With all due respect, this is a bunch of hooey. As Scalia put it, Kennedy's argument "taxes the credulity of the credulous." ". . . ,........................................... The notblind fellow, he write : Nonsense. DNA and fingerprints are the exact same thing. No difference. If it's legal to take the fingerprints of everyone that gets arrested then what's the difference in taking the DNA ? DNA is used to exonerate the innocent and to convict the guilty. Only someone with a hidden agenda could be against this. I wonder,,, what is Eugene's hidden agenda ????? ..........................................................Any guesses ???

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jack 1 year, 3 months ago

With the DNA, the government can clone armies of criminals to do their bidding..........

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FordGalaxy 1 year, 3 months ago

If you're building a database, like with fingerprinting, I could see an argument. But DNA retrieval is arguably more intrusive than fingerprinting. Also, fingerprints ostensibly are not taken and then put on a shelf for months before going into the police database. According to the information I've seen, this DNA sample sat for a while before it was measured against the open-case crimes in the database. This example bends the limits of credibility for the police in question.


If your fingerprints are taken, and days or months later a crime is committed and a single fingerprint is found, the police can use the database to hopefully determine the culprit. In this case, though, the sample was obtained after the fact, with no reasonable suspicion. How would you like to be arrested and the police basically say "we're going to take a sample of your DNA and run it against every other case, because you might be a worse person than we imagine, but we don't know"? This guy didn't even get that. The police had no reason to suspect him of the rape.


Don't get me wrong, I'm glad a rapists is off the streets. But it was not done the right way, and it runs the risk of setting a very dangerous precedent.

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notblind 1 year, 3 months ago

Let's just say for argument's sake that it was YOUR wife or YOUR daughter or YOUR granddaughter that had been raped by this guy. Still stand by your premise that taking the DNA of the person that got away with raping your kin and then was later arrested for violent assault is wrong ??? It's not like they have to cause the perp any physical discomfort to collect his DNA. For that matter, fingerprints are more of a pitn as you have to clean off the ink.

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FordGalaxy 1 year, 3 months ago

notblind - Are we a country of laws, or emotions? Sure, if it were my wife or daughter I'd probably be more than glad that they got the guy. But I don't want people's emotions ruling the justice system. If that becomes the case, we might as well throw away the Constitution.away. Please note, I have no problem with getting the DNA, only with the manner in which it was gained. There was no probable cause to suspect him of the rape (at least, according to the article and information I've read), and there was no warrant. They did not need the DNA to convict him of the assault he was arrested for, so what was the purpose of gaining it without a warrant? Again, I'm glad he's off the street. But I also fear the precedent being set.

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notblind 1 year, 3 months ago

I have a reasonable suspicion that violent people are the ones doing most if not all of the violent crimes in this country. I do agree that a perp should either have plead guilty or be convicted of any violent crime BEFORE his DNA is taken for the database unless the police have strong evidence linking someone to a fresh violent crime upon which time they can take DNA for that crime. If the DNA does not tie him to that crime then it is destroyed and not entered in the database.

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