On DNA, Scalia Was Right | RealClearPolitics

http://www.realclearpolitics.com/articles/2013/06/14/on_dna_sc...

Home Polls Video Twitter Issues Links Markets Policy World Science Religion Tech History Books Energy Defense Sports
Byron York: The Key Problem at Heart of Immigration Bill Gabrielle Giffords & Roxanna Green: Resolved to Do Better Chris Stirewalt: Distrust From Left & Right Is Sinking Obama Greg Sargent: House GOP Stomps on Republican Rebranding

On DNA, Scalia Was Right

By Eugene Robinson - June 14, 2013 Tweet 3 0 Email Print
0

Eugene Robinson
Author Archive
We Still Need This Debate The End of the Right of Privacy? Give Manning a Plea Deal

Comments

WASHINGTON -- The Supreme Court's ruling last week allowing police to compel DNA samples from persons arrested for serious offenses will solve cold cases around the country, putting dangerous criminals behind bars. But despite this clearly beneficial impact, the court's 5-4 ruling was wrong -- and may be more far-reaching than we can now imagine. The words "Antonin Scalia was right" do not flow easily for me. But the court's most uncompromising conservative, who wrote a withering dissent, was correct when he issued a dire-sounding warning from the bench: "Make no mistake about it: Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason." The case, involving a Maryland law that mandates DNA collection, scrambled the court's ideological seating chart. Scalia, of all people, sided with the liberals; while Justice Stephen Breyer, a liberal, joined the conservative majority. Maryland v. King was an appropriate test case. A man named Alonzo King was arrested in 2009 on an assault charge. Police in Wicomico County took a DNA sample by swabbing the inside of his cheek -without obtaining a search warrant -- as permitted under Maryland law. Months later, King's DNA profile was matched with evidence from a 2003 rape case. King was subsequently tried and convicted of the rape. It's impossible not to applaud the result: A rapist who otherwise would have escaped justice was made to pay for his heinous crime. But the way this result was obtained, Scalia argued, ignores the Constitution. The Fourth Amendment prohibits most warrantless searches without reasonable suspicion, and police had no reason to suspect that King had committed the rape -- or that he had committed any crime except the assault for which he had been arrested. Writing for the majority, Justice Anthony Kennedy accepted the state's argument that the DNA sample was actually a method of identification -- like a mug shot or a set of fingerprints -- and not an unreasonable search. With all due respect, this is a bunch of hooey. As Scalia put it, Kennedy's argument "taxes the credulity of the credulous." Before the DNA test was even performed, police knew perfectly well who King was. They had his name, address, date of birth, height, weight, eye color, you name it. No question had been raised about his identity. Months elapsed before King's DNA was entered into a national database. If identity were the purpose for collecting the sample, you'd think it would be compared with the DNA of people who looked like King or had a similar name. Instead, it was compared with DNA samples collected at the scenes of unsolved crimes. In other words, the obvious purpose of collecting the DNA sample was to solve cold cases. This is an admirable goal. But there's that pesky Fourth Amendment. "Solving unsolved crimes is a noble objective," Scalia wrote, "but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches." I don't pretend this is an easy case. My first reaction would be to try to find some way to uphold King's conviction -- and give police a way to catch others who believe they've gotten away with crimes such as

Too Juvenile to Govern Declaring the 9/11 Era Over

FOLLOW REAL CLEAR POLITICS

LATEST ON TWITTER

newsbusters: Bozell Column: Obama and the Callous Kanye Culture...

politico: RT @JakeSherman: Cantors wife put on revlon board....

jameshohmann: RT @politico: Evangelicals to GOP: Don't betr...

amandacarpenter: "There are approximately 78,000 abandoned and

More Tweets

LATEST POLLS
President Obama Job Approval
Gallup More US Polls Approve Disapprove 46 47

Disapprove +1.0

President Obama Job Approval

Rasmussen Reports More US Polls

Approve Disapprove

48 51

Disapprove +3.0

New Jersey Governor

Rutgers-Eagleton More NJ Polls

Christie (R) Buono (D)

59 27

Christie (R) +32.0 Christie (R) Buono (D) 58 28

New Jersey Governor

Rasmussen Reports More NJ Polls

Christie (R) +30.0

More Latest Polls

1 of 3

6/15/13 8:54 PM

On DNA, Scalia Was Right | RealClearPolitics

http://www.realclearpolitics.com/articles/2013/06/14/on_dna_sc...

rape or murder. But the court's solution is based on the kind of jury-rigged legal reasoning that can end up creating more problems than it solves. The ruling upholds laws already in place in 28 states; I imagine most or all of the rest will soon pass DNA laws of their own. If DNA collection is allowed for suspects arrested for alleged felonies, why not misdemeanors? Why not, for that matter, whenever police stop someone whose identity is deemed questionable because of, say, an expired driver's license? I realize that the law must come to terms with DNA and its unique power as evidence. I realize this will be an awkward and uncomfortable process. But we should move forward with both the letter and the spirit of the Constitution in mind. As Scalia notes, the Founders "would not have been so eager to open their mouths for royal inspection." In that spirit, before we give police such a broad right to compel DNA testing to put individuals in prison, we should at least guarantee that individuals who are incarcerated have a similar right to DNA testing that might exonerate them. And we should be honest about why we're making people say "Aaaaah."
eugenerobinson@washpost.com

RECOMMENDED ON FACEBOOK Rand Paul On NSA Spying: "I'm Going To Challenge This At The Supreme Court" 4 people recommend this. FNC's Political Insiders: This Is An Administration That Is In Crisis One person recommends this. Cummings: IRS Scandal "Solved," Time To "Move On" One person recommends this. FNC's Political Insiders: This Is An Administration That Is In Crisis One person recommends this.

Facebook social plugin

(c) 2013, Washington Post Writers Group

Related Topics: Genetics Recommend 4 Tweet 3 0

PRODUCT REVIEWS
Email Print
0

Comments

7.5

Basis Band
Personal health monitors are all the rage these days and the Basis Band hopes to do them one better by adding heart-rate, skin...

From the Web

by Taboola

Acer Aspire R7
Few products have been greeted with such divisive reviews as Acer's latest Windows 8 laptop, the Aspire R7. Perhaps it's no surprise,...

10 Startups Marissa Mayer Bought Before

Tour Michael Jordan's Highland Park Home for

3D printing 'bigger than internet'

8 Dream Kitchens

8.3

Sony Xperia Tablet Z

Sony has yet to find its way in the tablet market, but that may be changing with the Xperia Tablet Z. This Android 4.1-based slate... View More

12 Easy-To-Grow Fruits & Veggies

The 5 Tuition Loopholes Youve Never Heard Of

Smartphone Breathalyzer Alcohoot Unveiled for the

10 Worst Fast Food Meals You Can Eat |

More from RealClear

CBS Anchorman's Clueless Apology (RealClearPolitics) Under NSA's Unblinking Eye (RealClearPolitics) Anonymous Is No Hero (RealClearPolitics) Religion Living Dangerously (RealClearPolitics) The Award for Most Hypocritical Member of Congress Goes To... (RealClearPolitics)

Elsewhere on the Web

Israel Prepares for an Uncertain Future New York Times) (The Who Will Protect the Children? The Untold Story of Unaccompanied Minors in Witness Protection Programs (childlaw) 9 nabbed for carrying firearms on last day of election gun ban (Inquirer.net) Which Genes Can Be Patented? York Times) (The New

S. 394 - Metal Theft Prevention Act of 2013

Status: Committee on the Judiciary. Ordered to be reported with an amendment in the nature of a substitute favorably. - Jun 13, 2013

S. 622 - Animal Drug and Animal Generic Drug User Fee Reauthorization Act of 2013
Status: Became Public Law No: 113-14. - Jun 13, 2013

Water Dispute: Red River Rivalry Goes To The Supreme Court (Learnist)
[what's this]

S. 1156 - A bill to amend the Higher Education Opportunity Act to add disclosure requirements to to the institution Status: Read twice and referred the Committee
on Health, Education, Labor, and Pensions. - Jun 13, 2013

S. 1157 - A bill to reauthorize the Rivers of Steel National Heritage Area, the Lackawanna Valley Status: Read twice and National referred toHeritage the Committee View More Bills

2 of 3

6/15/13 8:54 PM

On DNA, Scalia Was Right | RealClearPolitics

http://www.realclearpolitics.com/articles/2013/06/14/on_dna_sc...

About Us | Contact | Advertise | Privacy Policy RealClearPolitics 2012

3 of 3

6/15/13 8:54 PM