In the Supreme Court case Maryland v. King, Justice Scalia is a hero. This is the case where the Court found that we really aren’t innocent until proven guilty. Anything that the police want to do with someone arrested is just fine as far as the majority is concerned. In recent years, it has seemed that Scalia acted more like a talk radio host than a Supreme Court justice. But in this case, he wrote a very forceful and compelling dissent.
It all started in the hearing. Katherine Winfree was arguing for the state. She said, “Since 2009, when Maryland began to collect DNA samples from arestees charged with violent crimes and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.” To which Scalia responded, “Well, that’s really good. I’ll bet you, if you conducted a lot of unreasonable searches and seizures, you’d get more convictions too.” There was laughter and then he finished, “That proves absolutely nothing.”
Glenn Greenwald tweeted the following poster
The issue is a tad bit more complicated than Scalia would indicate. Unfortunately, it is far far far more complicated than Kennedy, writing for the majority, would indicate. Basically, Kennedy claims that the DNA is only used to identify the person arrested. Clearly, that was not the argument that Maryland was making. It was just a cheap way for the majority to rule in Maryland’s favor. Emily Bazelon over at Slate provides a good example. We do not allow the government to search the houses of arrested thieves on the suspicion that they may have stolen other things that they may find there. So it wouldn’t have be easy for the majority to find that Maryland had a similar right just because it was DNA and not a home search. And that’s why we got this ridiculous notion that the DNA search is okay because it allows the state to ID the arrestee.
Scalia shot down this idea with such ease that the majority should have been embarrassed. Bazelon explains:
The problem from my standpoint, is that the court has ruled incorrectly on this kind of stuff for so long that it is hard to say how the court ought to rule now. Basically, the court has carved out so many exceptions over the years that the Constitution itself is pretty much irrelevant to the issue. Why are the police allowed to do suspicionless searches at DUI check points? The Supreme Court came up with some mindless idea of “special needs.” But even further back, finger prints are not simply used for identification. All of this stuff is simply meant to make the job of policing easier. And given the huge rise in the incarceration of nonviolent “felons,” I don’t think we ought to be doing that. It reminds me of the film Demolition Man where Alfredo tells Spartan that he doesn’t even know what the police did in his day before all people had tracking devices implanted in them. Spartan says, “We worked for a living. This fascist crap makes me want to puke.”
In this case, I side with Scalia’s “originalist” interpretation of the Constitution. But it shows just how useless the idea of the original intent of the Constitution is in such matters. There are (depending upon how you define it) one to three other judges who might be called “originalist.” And all of them voted against Scalia. A better argument is the practical liberal one: according to one recent study, one-third of all 23 year-olds have been arrested. So the majority is effectively claiming that it is okay to allow DNA testing of a vast fraction of the population. (Note: the Maryland law only applies to some crimes, but the majority opinion provides no such limit.)
It is hard to look at America and not think that while we are making very small strides in some areas (a deeply flawed policy to provide health insurance to a lot more people), we are making very big strides in the opposite direction in other areas. The way we deal with social control is totally unacceptable: building (more and more private) prisons and locking up more and more people for breaking laws that earlier generations would have thought inconceivable. It was once thought that charging 30% interest on a loan would put you in the 7th level of hell. Now we consider such people the very best our society creates. Meanwhile, ingesting forbidden plant material can put you in prison for the rest of your life.
I’m at least glad that on this very specific case, Scalia is on the side of right.