According to a Supreme Court ruling Monday, yesterday’s fingerprinting is today’s Q-Tip inside a suspect’s mouth.
The Supreme Court voted, 5-4, Monday to allow police to take a DNA swab of anyone they arrest for a serious crime.
“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 in the majority opinion.
The Fourth Amendment is the one protecting “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The court joined 28 states that don’t consider cheek swabs to be unreasonable. New York is not among those states.
We’re used to 5-4 decisions in the current court, but it’s usually on issues in which swing-voter Kennedy joins the four acknowledged conservative justices: Clarence Thomas, Samuel Alito, Antonin Scalia and Chief Justice John Roberts. However, this time it was Scalia who offered the most virulent argument against the ruling, which was supported by usually liberal Justice Stephen Breyer.
“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 wrote in his dissent.
However, while we are well aware of Benjamin Franklin’s warning that: “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety,” we believe the benefits to society in this case outweigh the inconvenience of requiring someone suspected of a serious crime to open his mouth and say “Ahhh.”
The case before the Supreme Court stemmed from an appeal by a Maryland man, Alonzo King, who was arrested for assault in 2009. After the police swabbed his cheek, his DNA matched that of a sample in an unsolved 2003 rape case for which King was subsequently charged, convicted and sentenced to life in prison.
In addition to putting dangerous people behind bars, DNA samples will undoubtedly lead to rightfully exonerating defendants who might otherwise be incarcerated or even face a death penalty.
Scalia worries that the law will go beyond serious crimes.
“If you believe that a DNA search will identify someone arrested for bank robbery,” he said, “you must believe that it will identify someone arrested for running a red light.”
Scalia is almost certainly correct, but we believe the good far outweighs the bad in this ruling. There’s a bipartisan bill in the state Assembly that would add New York to the states that approve DNA swabbing. Even if the Supreme Court ruling might make the question moot, we still urge its passage.