After Maryland resident Alonzo King was arrested for pointing a shotgun
at a group of people, his cheek was swabbed, his DNA put into the state
and national database. King took a misdemeanor plea offer on the weapons
charge – but it was his DNA profile, matched to a DNA profile out
of a prior unsolved felony
sex assault case, that landed King in prison for life. (H/T to Brandon Garrett and Erin
Murphy of Slate.)
King’s case went up on appeal, and the U.S. Supremes decided to take
it on. The Justices recently ruled that a cheek swab – after an
arrest based on probable cause, of course – is standard police procedure,
just like fingerprinting.
The rationale, according to Richard Lempert with the Brookings Institution,
was that an ID based on DNA is much more precise. Precise ID helps the
police determine who the arrested person really is and how much of a risk
the person poses to society if released before trial.
And, of course, precise ID helps the police determine what unsolved crimes
the arrested person may have committed in the past.
All in the name of good old-fashioned crime-fighting, except that the technology
here isn’t old-fashioned. It’s certainly unobtrusive, too.
That’s what Lempert writes. It’s less obtrusive than the arrest
itself, and certainly less obtrusive than any related search and seizure
conducted by the police incident to the arrest. All a suspect must do
is open his or her mouth and submit to a quick cheek swab.
So, then, what’s the problem? Why does Lempert (and defense attorneys
everywhere) take issue with the Court’s ruling?
Lempert quotes Justice Scalia, who dissented: “Perhaps the construction
of such a genetic panopticon is wise. But 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.”
It comes down, as always – as it should – to innocent till