I am not immune to commenting on those Supreme Court cases that garner more than their fair share of attention from the mainstream media. Nor, I suppose, should attorneys be immune, as it cannot hurt to add a few rational thoughts to the avalanche results-oriented editorials sounding a little more like tabloids every day.
The case of the week involves DNA testing. Every state in the nation collects and catalogue DNA of those actually convicted of serious crimes. The statute the Court blessed this week allows for the collection of DNA for all those arrested of a serious crime. (Mind you, what is a serious crime under the statute and what most might consider serious may not always be the same thing.)
Since one is supposedly innocent until proven guilty, howls of protests ensued, which were partially justified. I say “partially” because the law in Maryland, which was at issue in the Supreme Court case, cuts a little less broadly than some would lead us to believe. True, the sample is collected at the time of arrest. But it is not catalogued unless a magistrate finds probably cause for trial and is destroyed upon a finding of no probable cause or upon a not-guilty verdict. (The Court shyly left for another day any burden on the state to establish a process ensuring that the sample was not improperly catalogued before arraignment or that it was indeed destroyed when mandated by law.)
Still, that is a lot of power yielded by the state. The Court allowed it because it thought the state to have a sufficient interest in establishing with certainty (1) the identity of the arrestee and (2) whether he is wanted elsewhere. Of course, the person arrested for one alleged offense is not really “wanted” elsewhere until he is made a suspect in another case by a hit in CODIS, so the Court indulged in a bit of circular reasoning.
The Court was further unconcerned because the swabbing is a minimal intrusion. It may be true that a cotton swab inside the cheek is, physically, a minimal intrusion. But it stretches credibility that this is the intrusion that most people might fear. The intrusion that the Court glossed over is the intrusion on being left alone by the state instead of being catalogued for all eternity in the government’s mighty databases.
Reading between the lines, I think the Court was reaching for a reason to allow that kind of DNA testing because it did not want to put the cats back in the bag. DNA testing has already helped improve the legal system, said Justice Kennedy, who wrote the majority opinion, by freeing the innocent as well as catching the guilty. It is already in widespread use throughout the nation. It is, supposedly, accepted as merely another form of routine identification, like mug shots or fingerprints. Since limiting its use now seemed unpractical, Kennedy and four others were happy to find “identification” a genuine and sufficient state interest and the intrusion on the citizenry to be minimal.