[Note: This post was previously published at Shakesville.]
Boston Globe—Supreme Court rules police can take DNA samples from those arrested
WASHINGTON (AP) — A sharply divided Supreme Court on Monday cleared the way for police to take a DNA swab from anyone they arrest for a serious crime, endorsing a practice now followed by more than half the states as well as the federal government.Previously, taking a cheek swab from a non-convicted felon required a warrant issued by a judge. The Supreme Court has now ruled that taking DNA at arrest time constitutes only a minimally invasive search on the grounds that a cheek swab is not painful, and can be performed without a warrant or a conviction.
The justices differed strikingly on how big a step that was.
‘‘Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,’’ Justice Anthony Kennedy wrote for the court’s five-justice majority. The ruling backed a Maryland law allowing DNA swabbing of people arrested for serious crimes.
But the four dissenting justices said the court was allowing a major change in police powers, with conservative Justice Antonin Scalia predicting the limitation to ‘‘serious’’ crimes would not last.
‘‘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,’’ Scalia said in a sharp dissent which he read aloud in the courtroom.
There are a lot of concerns I have about this decision, not the least being that institutionalized bias in the police force leads to the disproportionate arrest of marginalized people over privileged people. Indeed, I worry that this ruling will further increase this gap between marginalized and privileged: if a mentality of "the more arrests, the better" takes hold in service to filling out the federal database, then we may see an uptick in arrests among those populations of people which are ill-equipped to defend themselves.
At the same time, if arrests start to lead to permanent DNA collection to be stored in a database for time and eternity, the privileged people who are able to call in favors and pull strings to dodge justice are going to be empowered to do so even more: "You don't want to bring in Johnny on a simple little mistake, do you? His DNA will go into the database, and that's a big penalty for a little college hijinks, especially when he has such a big future ahead of him..."
And, of course, victims will be pressured even more to not press charges or file complaints, because an arrest would obviously ruin the perpetrator's life, and what if you were wrong, are you sure you're remembering correctly, ad nauseum.
It is entirely possible that we need to revisit DNA collection (and other methods of high-tech search and seizure) now that we're in the enlightened space age of 2013. But the institutionalized prejudice which unfairly targets the marginalized, re-victimizes victims, and protects the powerful is still tremendously present, and any conversation regarding DNA collection needs to acknowledge this.