Maryland v. King: Scalia and the genetic panopticon

by Walter Olson on June 4, 2013

Yesterday the Supreme Court decided it was okay to require arrested persons to submit to DNA testing meant to match them to unsolved crimes. [Maryland v. King; Robert Kaiser, Washington Post; Nina Totenberg, NPR] In an impassioned dissent joined by liberals Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Antonin Scalia warned that an important civil liberties line is being crossed as the Court now approves suspicion-less searches of persons at a stage at which the law presumes them innocent, without any primary motivation except to gather evidence of unrelated crime.

I’ve got an article in The Daily Beast this morning on the Scalia dissent and its warnings that lawmakers may soon embrace a genetic surveillance state in the name of security. Excerpt:

In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”) Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?

With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. … 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.”

More: I’ve got this related piece in Newsweek on the Justices’ shifting Fourth Amendment alignments. Thanks to Glenn Reynolds for the Instalanche. And other commentaries from Daniel Fisher, Lowering the Bar (on the Jeremy Bentham angle; Scalia’s dissent mentions Bentham twice; Scott Greenfield; Julian Sanchez; Jacob Sullum). And Mississippi has just announced plans to match offspring of underage mothers to responsible fathers through DNA database checks based on umbilical cord blood. [NPR]

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{ 1 comment }

1 Ron Miller 06.05.13 at 11:18 am

I support the majority – the conservatives, actually – in this case. I just don’t think DNA in this context is all that invasive. I think it is worth catching some more real bad guys. I would not mind giving a DNA swab when I board a plane. I don’t see the efficacy of it. But it seems like a small price to pay. I think when you add up the suffering that is avoided by getting those bad guys off the street versus the level of the invasion… I don’t think it is a close call.

Sometimes, I think the knee jerk reaction is to feel that we are somehow becoming a police state because we are applying new technologies. So the reaction is that any new invasion is too much. I think each one can be weighed on its merits and I don’t fear the slippery slope that many of you do.

Still, it warms my hear to see Scalia joining the liberals. I love when justices seems to have independent voices of the issues of our day.

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