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]
Last month 13 guards and 12 others were indicted on charges of letting a gang effectively take over management of the Baltimore City Detention Center; according to the indictment, corrupt guards allegedly smuggled in drugs, cellphones and other contraband and had sex with the gang leader, several becoming pregnant by him. Since then the public and press has been asking what went wrong. A Washington Post editorial suggests one place they might look:
The absurd situation described in the indictment took root at least partly because of a “bill of rights” for corrections officers, backed by Gov. Martin O’Malley (D) and enacted by the Maryland legislature in 2010 at the behest of the guards union, the American Federation of State, County and Municipal Employees. This bill of rights grants extraordinary protections to guards, including shielding them from threats of prosecution, transfer, dismissal or even disciplinary action during questioning for suspected wrongdoing.
While Gov. O’Malley has sought to minimize the relevance of the 2010 law, the Post notes that FBI recordings suggest that a guard who was deemed “dirty” was transferred to another facility, rather than fired — transfers-instead-of-firing being a less than optimal way of dealing with public employee corruption, but one typical of systems with strong tenure entrenchment. AFSCME, which boasted at the time of its “relentless lobbying” on behalf of the law, is now doing damage control. More: “those protections left officers at the jail without fear of sanctions for allegedly smuggling contraband or having relationships with inmates, the FBI said in an affidavit.” [Baltimore Sun] Union-allied lawmakers defend the measure [AP]
The town of Laurel, Maryland tries using fake traffic cameras. “Maryland law restricts most jurisdictions from putting speed cameras anywhere other than near schools, and they can only operate Monday through Friday from 6 a.m. to 8 p.m.” Other neighborhoods wanted cameras installed in hopes of reducing traffic speeds, so the town set up empty boxes. [DCist]
Back to the gravel walk? A new environmental program pressures populous Maryland counties to levy assessments on property owners based on their square footage of impervious surfaces such as roofs, patios or driveways that prevent rainwater from sinking into the soil [Blair Lee, Gazette; Maryland Reporter; Frederick News-Post; Anne Arundel County]
P.S. While some of the Maryland commentary has treated the idea as new and experimental, thanks to commenters for pointing out that it’s already a familiar part of the scene elsewhere.
Given the bossiness of the legislature in Annapolis these days, I had to check the calendar on this one. [Anita Park, Greater Greater Washington, April 1]
P.S. And from The Onion, where every day is April 1: “Mississippi Bans Soft Drinks Smaller Than 20 Ounces.”
Yet more: Didn’t Ilya Shapiro predict this? “Supreme Court upholds same-sex marriage as a tax” [Tax Foundation]
In the aftermath of a controversial decision by the state’s highest court (earlier here, here, here, here), etc.) the Maryland legislature is proceeding in its task of devising new rules to govern lawsuits over dog bite injuries:
But the House and Senate versions differ markedly on legal liability for a pet owner when his or her dog bites someone. The House bill would allow an owner to show a “preponderance of the evidence” that a pet did not have a tendency to bite. The Senate version requires a stricter legal standard of “clear and convincing” proof that the dog is not aggressive — making it easier for victims of bites to sue and win.
It does not require a law degree to figure out that without clear rules on what makes a dog safe, lawyers will see bite victims as cash cows. [Sen. Bobby] Zirkin, a Democrat from Baltimore County, [who sits on the Judicial Proceedings Committee that crafted the bill,] apparently already does. A visit to his website, http://www.bobbyzirkinlaw.com/, makes it clear. One of the first images is a white dog that looks like a pit bull, teeth bared, lunging against its leash.
After noting that victims of dog bites should seek medical attention, he suggests they “Call the Law Office of Bobby Zirkin at 410-356-4455 immediately and come in for your free consultation on this important matter.”
The committee’s chair, Sen. Brian Frosh of Montgomery County, also practices with an injury firm, though his own practice tends toward commercial disputes. [Marta Mossburg, Frederick News-Post] Incidentally, the weekly adopt-an-animal feature of the same newspaper is now filled with pictures of ownerless dogs with pit bull lineage.
What could be more perfect than the tale of the Maryland 7 year old suspended from school for nibbling his breakfast pastry into the form of a gun? This: the school is now offering counseling to any students traumatized by the incident. [Lowering the Bar]
Maryland bicycling advocates can tell the difference, and are opposing a proposal by Del. Maggie McIntosh (D-Baltimore) to mandate helmet use. There’s a lesson somewhere in there, or so I surmise in my new Cato post. Update: more details from an opponent.
After a thorough scolding by the judge — to say nothing of some of us on the commentary side — the celebrity-friendly environmentalist group is cutting its losses. [DelmarvaNow] An official with the University of Maryland’s environmental law clinic defends the school’s stand here.