Unlike some other commentators, I was not surprised that Justice Scalia dissented in Maryland v. King, the 5-4 ruling that states can take DNA samples from criminal defendants who have been arraigned for a violent crime but not (yet) convicted. Justice Scalia often takes what appears superficially to be a “liberal” turn in cases involving the Fourth, Fifth, and Sixth Amendments, and often gives a fairly strict “textualist” reading of these provisions.
More surprising was that Justice Breyer joined Justices Kennedy, Thomas, and Alito, and Chief Justice Roberts, in the majority of a “pro-law enforcement” decision. Since he did not write separately, his reasons can be left to more or less informed speculation about his “pragmatism” or his friendliness in general to governmental power.
On the issues in the case, I find myself agreeing with the majority in King, and with its defenders such as the Wall Street Journal’s editors and Akhil Amar and Neal Katyal (at the NYT). I think Noah Feldman’s Gattaca fears are wildly overblown, given the terms of the Maryland statute.
To return to Justice Scalia, what surprises me about his opinion is not the position he took, but the weakness of his argument. He opens with this:
The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.
Here Justice Scalia’s textualism simply fails him. What he calls a “categorical” prohibition that is “at the very heart of the Fourth Amendment” cannot even be found in its text. Whence he comes by it, he never really says.
Scalia also takes great delight in an extended mockery of the argument of Justice Kennedy (for the Court) that DNA records are kept for “identification.” Of course, “identification” has more than one meaning. “Establishing the identity” of the person in custody is just one of them. The other is “identifying criminal suspects,” a purpose Kennedy affirms (while Scalia pretends not to notice he does), and in that respect DNA sampling is more like fingerprinting and photography than Scalia allows. Long before either of those older technologies, law enforcement had little trouble establishing the identity of the persons it had in custody, and even today fingerprints and photographs are far less important in the daily operations of the criminal justice system than regularized monitoring of those persons and of the chain of custodial control in moving them about. The great advances of photography and fingerprinting were in crime-solving. In this respect DNA is simply far more advanced for the same purposes.
But if crime-solving rather than identity-establishing is the real purpose, as Scalia rightly says, then isn’t the cheek swab for DNA a “search” under the Fourth Amendment? Sure, but the question is whether it is an “unreasonable” one. Justice Scalia is wrong to suggest that probable cause, or its weaker sister “reasonable suspicion,” is the touchstone of the Fourth Amendment. Is a DNA swab a reasonable form of non-invasive personal search when routinely conducted of persons held on charges of violent crime? The Maryland legislature, which carefully circumscribed the procedures by statute, thought the answer is “yes,” and five justices reasonably concluded that “yes” is a reasonable answer.
Justice Scalia says, at the end of his opinion, that:
All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault.
As Justice Kennedy noted for the Court, “All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice.” When Justice Scalia says “[a]ll parties concede” the propriety of this practice, he does not indicate whether he agrees with that concession. Does he?
If Justice Scalia thinks it would be constitutional to take King’s DNA after his conviction for second-degree assault, how then would that conviction conjure up probable cause or reasonable suspicion that he might be guilty of an unrelated violent rape committed six years earlier? Consistent with his own argument, Scalia should condemn all use of DNA samples, even those taken from convicted offenders, if they are used, without any previous evidentiary basis for suspicion, in the pursuit of crime-solving in cold cases.
So Scalia leaves us to wonder whether he is a) willing to forgo an advanced crime-fighting tool that employs a routine, noninvasive search, even of persons already convicted of heinous offenses, but is unwilling to say so now in a case where no party makes that argument; or b) willing to set down, as a legal principle, an inconsistent application of the Fourth Amendment that its text will not support, between two classes of persons equally protected by its norms of probable cause and reasonableness, namely accused criminals and convicted ones, neither of whom is actively suspected of other unrelated crimes at the time of the search.
This was not one of Justice Scalia’s better judgments.