Maryland v. King, the recently decided DNA identification case, has elicited both cheers and jeers. Cheerers see the case as an important weapon in the fight against crime, while jeerers see the case as a serious infringement on privacy and 4th Amendment freedoms. In this dispute the cheerers probably have the better case, but this is because a debate based mainly on interpretations of the 4th amendment does not get at the core of the issue we should be confronting. Perhaps the most common concern of those appalled at the decision is that collecting DNA samples involves an infringement on privacy that is by orders of magnitude greater than that which accompanies other identification evidence, such as fingerprints and photographs. DNA, they point out, can reveal far more about a person than a photograph or a fingerprint, including perhaps violence proneness and the likelihood of contracting different diseases. This concern is, however, largely groundless. DNA collected to match criminals to crimes includes information about 13 gene segments (alleles) that are part of the non-coding portion of the genome. They reveal no intimate information about their sources, nor are they likely to, and the information stored in a data base describes only these 13 alleles. The concern is not entirely groundless, however, for the Maryland statute at issue in King seems to contemplate that whether or not a DNA sample relates to the crime for which a person was arrested, it will be retained if the person is convicted of that crime. It is hard to see a legitimate reason for this or why a criminal upon conviction should lose this aspect of personal privacy, but the question of whether DNA samples following conviction could be retained and further analyzed was not at issue in this case.
The second concern of those appalled is simply that a search of a still innocent person has occurred without probable cause. The concern is fed by Justice Kennedy’s majority opinion in King which is entirely unconvincing in its attempt to justify DNA collection as an ordinary part of the booking process, much like fingerprinting. The opinion suggests that the primary justification for taking an arrestee’s DNA is to allow the authorities to identify with certainty the person before them and to better assess the care with which he should be guarded or the danger that if released on bail he might flee or pose a threat to society. Justice Scalia in dissent demolishes this rationale, pointing out that fingerprints are a far faster means of identification and, he might have added, far cheaper. Moreover, in King the delay between the time King’s DNA was taken and when results were returned was about 4 months. Such delays are not unusual and mean that the DNA taken from arrestees cannot satisfy the concerns that for the King majority are the main rationales for allowing the search.
Yet it is hard for one who is not a 4th Amendment purist to get upset about this search. DNA samples are taken by lightly brushing a swab on the inside of a person’s cheek. The time needed is negligible and intrusion could hardly be less. Compared to the disruption of the arrest and searches for weapons or contraband upon arrest, the “search” for DNA is nothing. Indeed it is nothing compared to the inconvenience and intrusion that is no doubt felt by the teenager who is stopped for “informal” questioning, not amounting to a search, on the streets of New York.
The cheerers, on the other hand, are right to see the DNA sampling of arrestees as a tool for crime control, although whether it will prove as valuable as its advocates claim remains to be seen. (Even if a cold case is solved the offender is already under arrest and most likely would have been convicted and sentenced for his most recent crime.) People are identified as criminals when their DNA is typed and matched to DNA taken at a crime scene or from a crime victim, as with semen found on a rape victim. The unsolved crimes in the DNA data base are serious ones and often, as with rape and burglary (where the UK has taken the lead) many offenders repeat their crimes if not caught. Moreover, the number of cold cases being resolved is not negligible. The Kansas Bureau of Investigation reports, for example, that it had 284 cold hits in 2011 using the national registry, including suspects in 13 homicides and 54 rapes, but a large proportion of these hits most likely would have come anyway from samples taken after arrestees were convicted. Still there are definitely crime control returns to taking DNA from arrestees, some future crimes are in all likelihood prevented and as knowledge of data base searches permeates society perhaps there will be deterrent effects as well.
But these virtues of DNA testing are beside the point, or at least they should be. The issue the Court barely touched on and never dealt with adequately is whether states are justified in singling out still innocent defendants for DNA testing and sparing the rest of us. If everyone’s DNA were tested, say at birth, and kept on file, even more DNA identifications would be made; more criminals would be locked away before they could offend again, and deterrence would be greater. Except by fiat it is hard even to argue for the generally accepted position that those convicted of crimes have forfeited their right to keep the information in their DNA to themselves. It is far harder to argue that those who have been selected by the police to be arrested have, before they are convicted, forfeited this right. Not only are arrestees presumed innocent, but many are in fact innocent of the offense that led to their arrest. In investigating a crime the police may arrest and release several suspects before they identify the true perpetrator, and many of those arrested are never tried or if tried are not convicted.
The difficulty of justifying King is still greater when one considers that the police do not arrest innocent people at random. Minorities appear particularly vulnerable. A just released study is instructive. It suggests that even though similar proportions of whites and blacks use marijuana, a black person is about 4 times as likely to be arrested for marijuana possession as a white person, and in some places the disparity is several times as great. This means that blacks who have not committed the crime leading to their arrest are at greater risk than similarly innocent whites of being linked to another crime through DNA profiling. It is, in addition, not just those arrested who are especially vulnerable. If an arrestee’s DNA is the same on most but not all alleles to the DNA in a data base, there is a good chance, amounting often to almost a certainty, that a relative of the arrestee left the crime scene DNA. Moreover, we are not just talking about brothers and sons; the net can be cast very wide. In one UK case, the police compiled a list of 700 people who might have been the source of crime scene DNA that almost but not quite matched the DNA of the initial suspect. Based on considerations like age, gender and residence, they winnowed the list of relatives down to develop a manageable group for further investigation, and they eventually identified the perpetrator. Thus people who have never done anything to justify having their DNA typed are effectively in the DNA data base, and racial disparities in the likelihood of arrest will be reflected in the degree to which never-arrested members of different ethnic groups are vulnerable to DNA identification. The Maryland law at issue in King recognizes these problems. It allows DNA to be collected only from those arrested for serious crimes, and it does not allow familial searching. Other states are not so restrictive, however, and many in the criminal justice system are pushing for more use of near match identifications. The Court’s decision in King can be expected to spur movement in this direction.
What , one might ask, is so bad about using DNA samples taken from arrestees to identify people guilty of unsolved crimes? If an arrestee is found guilty of the crime that led to his arrest, it matters little whether his DNA is typed and compared to unsolved crime DNA before or after conviction. If he is not charged with or convicted of the crime leading to arrest, then but for the DNA typing he would continue to thwart justice for a crime he did commit, surely not a desirable outcome. Even the relative who is discovered by a near match is hardly an object of sympathy. He too is most likely to have not only committed a serious crime but also to have evaded capture for it. From a just deserts perspective nothing seems wrong. Those who have escaped justice now find they must pay the price for their crimes. From a distributive justice perspective the situation is, to be sure, more troubling, for it exacerbates the degree to which some minorities are more likely than similarly criminal whites to be arrested for their crimes. Still the cure should be to arrest more white criminals and not to let other who have committed crimes go free. Moreover, since much crime is intraracial those saved from future rapes or killings will often have the same heritage as those captured.
If there is an argument against more widespread DNA typing, it relates to the surveillance society we are building and when the 4th Amendment will protect against this. Do we want to allow DNA to be taken when no crime is suspected if by doing this we will catch more rapists and murderers? The answer is unclear. We are, after all, a society that tolerates thousands of preventable gun deaths, many of which are criminal, in the name of individual freedom. Some like Justice Scalia will argue that regardless of results, suspicionless searches, even ones as minimally intrusive as a DNA cheek swab, offend our human dignity and violate the Constitution. Others will feel that the infringement on privacy and autonomy is minimal and that catching more rapists and murderers and deterring others makes the trade-off between dignitary interests and crime control more than worth it. It is the dispute between these two positions that we should as a society be deciding.
The problem with the King case is that it distorts our judgment of the values at stake. Psychologically when we think about the issues King raises, we are deciding for “the other.” Alonzo King was, after, all arrested for and found guilty of a serious violent crime. He is not like us. Thinking of King, it is easy to strike the balance in favor of crime control over 4th Amendment rights and human dignity, for he certainly does not exemplify the latter. Yet Alonzo King, at the time his DNA taken, was in all legally relevant respects like us in his innocence. We should judge the result in King not with Alonzo King in mind but with ourselves, our friends and neighbors standing in his place. Some through near match searching are, unknowingly, already there. Others could be, for King is precedent for establishing a national DNA database since it is hard to imagine any principled distinction between King while he stands unconvicted and ourselves. (The only salient difference, that an arrest requires probable cause, is too thin a reed for any but the most cynical to rest upon.) It is in the context of establishing a national data base, to include our own, that we should consider the desirability of King. Reasonable people can differ. Some would be willing if not eager to have their DNA in a data base if that would deter crime and mean that more who were not deterred were caught. Others would side with Justice Scalia who wrote, “Perhaps the construction of such a genetic panopticon is wise. But 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.” What is most wrong with the Court’s decision in King is not that it reached a bad result, but that it forestalls the debate we should be having.