Wednesday, June 5, 2013

Big Brother Just Got Bigger

by Pa Rock
Citizen Journalist

The United States Supreme Court this past Monday showed a colossal contempt for privacy and the Fourth Amendment in its ruling on the case of Maryland v. King.  That decision, simply put, said that it is okay for law enforcement to take DNA swabs from persons arrested on suspicion of taking part in a “serious offense.” 

The 5-4 decision (and aren’t they all 5-4 these days) was noteworthy in that Justice Breyer and Justice Scalia switched corners with Breyer joining the conservatives and Scalia voting with the liberals.  Scalia pointed out that one argument for this intrusion into the privacy of non-convicted citizens was that putting their DNA in the national database would help solve cold case crimes.  The acerbic Scalia noted, quite correctly, that so would taking DNA samples from people boarding passenger planes or children starting to school.

The majority opinion said, in part:

"When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,"

The term “serious offense” is tantalizingly vague, leaving room for interpretation.  Many states are stepping forward to list specific crimes as serious – homicide and rape, for example.  But there are some police jurisdictions where crimes often seem to be conflated with racial prejudice.  Will this ruling lead to a situation similar to the one that currently plays out in America’s prison system – where people of color are more likely to be deemed serious than white-collar whites?  History would indicate a strong likelihood of that happening.

There are currently over 10 million entries in the federal Combined DNA Index System, a number that will be significantly boosted by the Supreme Court Decision in Maryland v. King.   Police agencies note that DNA is rapidly replacing fingerprints as the best identifier of criminals.  It is a system that is bound to keep burgeoning – leaving one to wonder when it will grow to encompass food stamp applicants, young people seeking student loans, or old farts applying for their Social Security benefits.  Or how about one more line at the Division of Motor Vehicles?  The possibilities seem endless.

Invading the privacy of persons convicted of crimes is one thing, but taking DNA from those who have not had their day in Court is quite another.  The Supreme Court has cracked open the privacy door, and Big Brother is peeking in.


Xobekim said...

BREITHAUPT v. ABRAM, 352 U.S. 432 (1957) is the case that makes nonsense about this modern paranoia of DNA databases. This is what a unanimous Supreme Court said in 1957.

"As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in applying a blood test of the kind to which millions of Americans submit as a matter of course nearly every day, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so since the test likewise may establish innocence, thus affording protection against the treachery of judgment based on one or more of the senses. Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence, the individual’s right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is far outweighed by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions."

The DNA swab is likewise "so slight an intrusion". I likewise hear no call to truncate the databases of fingerprints available to law enforcement.

Xobekim said...

I take that back the decision was 6-3 with Warren, Douglas, and Black dissenting.

Pa Rock's Ramble said...

Warren, Douglas, and Black are all good company. So for that matter are Ginsburg, Sotomayor, and Kagan. Scalia I'm not so sure about.

Fingerprints are also an invasion of privacy, whether the practice has aged into social acceptability or not. And blood tests are highly invasive. If a person is not proven to be a criminal, where do we draw the line on these invasions of privacy? Or should there even be a line?

If were going to tie DNA to the possibility of crime or future crime, maybe we should be swabbing gun and ammo purchasers.