Friday, January 17, 2014
David H. Kaye (Penn State Law) has posted Why So Contrived? The Fourth Amendment and DNA Databases After Maryland v. King (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court narrowly upheld the constitutionality of routine collection and storage of DNA samples and profiles from arrestees. Oddly, the majority confined its analysis to using DNA for certain pretrial decisions rather than directly endorsing DNA’s more obvious value as a tool for generating investigative leads in unsolved crimes. This article suggests that this contrived analysis may have resulted from both existing Fourth Amendment case law and the desire to avoid intimating that a more egalitarian and extensive DNA database system also would be constitutional. It criticizes the opinions in King for failing to clarify the conditions that prompt balancing tests as opposed to per rules for ascertaining the required reasonableness of searches and seizures. It urges the adoption of a more coherent doctrinal framework for scrutinizing not just DNA profiling, but all forms of biometric data collection and analysis. Finally, it considers what King implies for more aggressive DNA database laws.