A few months back, the blog posted an article on a controversial Maryland law that allows police to sample and store DNA from any individual arrested for a violent crime or for burglary. Despite this law still being up on appeal, for the past few months state law enforcement agencies have continued to engage in this practice under the authority of a signed order from Chief Justice Roberts. The order did not overturn a decision by the state court of appeals, which declared the DNA law unconstitutional, but rather allowed DNA sampling to continue pending a final opinion by the country's highest court. A decision on this controversial law is now expected in the coming months, as the Supreme Court recently heard arguments on the constitutionality police DNA sampling. The arguments were spirited to say the least, and at this early juncture there is no indication which way the majority appears to be leaning. But all justices are aware that this is could be a seminal opinion that could shape criminal procedure for the coming years. Justice Alito described it as the most important criminal procedure case in decades. He added that many murders and rapes could be solved using this technology, which involves a minimal intrusion on personal privacy, and asked why DNA sampling is not the fingerprinting of the 21st century. Whether these statements have tipped Alito's hand remains to be seen, but there were is certainly some skepticism from the other justices about the law's constitutionality.
During oral argument, Maryland Attorney General Douglas Gansler presented facts concluding that the state had obtained 42 convictions for serious crimes as a direct result of the DNA collection law. Justice Scalia though was not so impressed by this argument, and matter of factly dismissed it in his vintage short and to the point style. Scalia stated "Well that's really good. I'll be if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. That proves absolutely nothing." It's safe to say that Scalia's mind is as sharp as ever when it comes to criminal procedure issues. Justice Ginsberg may have tipped her hand against the Attorney General when she stated that although DNA collection is a reliable tool, the process does not require any type of suspicion about the individual who's DNA is being collected. Justice Kennedy appears to disagree, opining that the police should have the right to know whom each person in their custody actually is, and to have the ability to learn about any crimes the individual may have committed in the past.
This pending decision will have an immediate impact on criminal justice in the state of Maryland, and will likely have a great deal of influence on future policy in many other states. The language of the opinion will detail exactly how beneficial and intrusive the court believes DNA sampling to be, and will likely be sighted in countless future rulings and legislative debates throughout the country. The blog will update with a follow up entry as soon as the Supreme Court hands down an opinion.
Benjamin Herbst is a criminal defense attorney specializing in drug possession and sale, DUI, robbery, and burglary. Contact Mr. Herbst at The Herbst Firm for a free consultation.
Justices Wrestle Over Allowing DNA Sampling at Time of Arrest, www.nytimes.com.