Wednesday, October 30, 2013
Andrea L. Roth (UC Berkeley School of Law) has posted Maryland v. King and the Wonderful, Horrible DNA Revolution in Law Enforcement (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In Maryland v. King, the Supreme Court held that a Maryland statute authorizing forced DNA sampling from those arrested for certain serious felonies, for inclusion in Maryland’s offender DNA database, did not violate the Fourth Amendment. At oral argument, Justice Alito declared that King was “perhaps the most important criminal procedure case that this Court has heard in decades.” That statement, while perhaps dramatic, reflects how the DNA revolution has transformed crime solving. We are flooded daily with media reports about unresolved cases cracked by a “cold hit” between DNA from a crime scene and a convicted felon’s DNA database profile. Maryland’s law, which adds the DNA profiles of arrestees of serious crimes to the convicted felon profiles already in the state offender database, is squarely a part of this crime-solving frenzy. One might be forgiven, then, for predicting that an opinion upholding that law would be an unapologetic paean to the crime-solving virtues of DNA databases. Instead, the majority reconceptualizes the law as deploying DNA typing as a “routine booking procedure,” and focuses exclusively on the state’s interest in confirming arrestees’ identities and determining arrestees’ criminal history before making bail decisions.
In Part I of this essay, I offer an explanation for the majority’s curious logic. Part of the explanation is obvious: five justices were not ready to hold that a suspicionless search conducted primarily for crime-solving is legal so long as it is “reasonable.” But the Court might also have been concerned that a crime-solving rationale would justify expanding databases beyond arrestees for serious offenses to arrestees for minor traffic offenses or even the general public, results that the Justices — and other privileged Americans who are lucky enough never to have been arrested for a serious offense — might not quietly abide. In Part II, I explain that while the dissent is right in pointing out the Court’s revisionist view of the law, the Court still might have written a coherent opinion upholding it. I ultimately suggest in Part III, however, that the norm the Court’s opinion seems to set — drawing the line at arrestees — is the worst possible result. As long as arrestees are going to be swept up in the dragnet, the best policy choice — one that would avoid the severe racial inequities in current databases, maximize DNA’s crime-solving power, and ensure a robust privacy debate, is a universal citizen database.