Wednesday, August 28, 2013
Elizabeth E. Joh (U.C. Davis School of Law) has posted Maryland v. King: Policing and Genetic Privacy (__ Ohio State Journal of Criminal Law __ (2013, Forthcoming)) on SSRN. Here is the abstract:
With its decision in Maryland v. King, the Supreme Court finally stepped into the debate about the use of DNA databases in the American criminal justice system. With King, the Court decided a newly emerging database issue rather than an old one: whether the Fourth Amendment prohibits the collection of DNA samples from arrestees without a warrant or any individualized suspicion. According to the five member King majority, such compulsory collections are reasonable Fourth Amendment searches, given the outcome of a balancing of interests between the individual and government. The problem with King is that it may become influential in ways that weren’t fully contemplated by the Supreme Court. While some may lament the micromanagement of policing by the modern Supreme Court’s jurisprudence, the reality is that police investigation practices are unevenly regulated. Indeed, what King reveals is the extent to which the Court leaves many matters untouched by Fourth Amendment constraints and subjects them, for better or worse, to the control of the other political branches (as well to likely squabbling in the lower courts). This essay discusses three notable revelations in the Court’s decision about the future of policing and genetic privacy. As the essay argues, what the Court introduces it also fails to regulate or even guide in any significant sense.