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June 6, 2013

Some more thoughtful thoughts on DNA collection and Maryland v. King

UCP text imageAlan Michaels is not only my Dean at the OSU Moritz College of Law, he is also the co-author of Understanding Criminal Procedure (with our colleague Joshua Dressler). Consequently, when he sent an e-mail with some thoughts on the SCOTUS ruling in King concerning DNA collection from arrestees, I was quick to ask his permission to reprint these thoughts in this space.  With his permission, here they are:

1) It is surely true that more crimes will be solved by running the DNA of arrestees through a database of unsolved crimes. But the thing that probably troubles me most about the case (as a normative matter, not thinking about correct doctrinal answer), is that the content of the group “arrestees” is framed in a lot of ways by racial bias, so that the impact of this in the long run will very likely be disproportionate apprehension of guilty individuals of color for these unsolved crimes. I like apprehension of the guilty (a lot!), but the potential disproportionate part is very, very, troubling. Although King was limited to arrestees for “serious” crimes, the writing is on the wall; in other contexts “serious” can mean punishable by six months or more, pretextual arrests are not unheard of even without this DNA incentive, and the Court has made clear that custodial arrest is constitutional even for traffic offenses. Indeed, I was deeply moved by the irony of the decision coming down the same day as this report came out [noted in this prior post] showing that all else equal African-Americans are four times as likely as whites to be arrested for marijuana.

If we are going to use new “super methods” for crime solving, that at least make us hinky about privacy, I think we need to do so in a way that does not have a disproportionate impact on subordinated groups.  As Scalia points out in dissent (making a different point), we would also solve crimes by swabbing all airline passengers....

2) A different thought though, while still focusing on the real world impact: Justice Scalia is in dissent on this one, while Thomas (his originalist compatriot) and Akhil Amar and Neal Katyal [noted in this prior post] think he is wrong about what the framer’s would have said about DNA swabs.  As probably all of you know, I’m not a fan of originalism anyway. I can’t help but notice that this is, once again, a case where Justice Scalia surprisingly is on the side of the criminal defendant as a result of his view of what the framers would have done, but it just happens that the practical impact is most felt around a crime where men are being prosecuted for crimes against women and girls.

First Maryland v. Craig, (Justice Scalia loses war he won first battle of in Coy v. Iowa; child victims of sexual abuse are allowed to testify in separate room from criminal defendant); Second, Crawford (out of court statements where witness unavailable newly excluded as constitutional matter — big impact in domestic violence prosecutions, where victim’s statements previously admitted under hearsay exception when victim would not testify at trial), and now King (DNA that he would forbid being collected used most frequently to solve rapes and other sexual assaults).   As one colleague pointed out to me, there are an at least equal number of Justice Scalia pro-defendant cases that do not have this feature (against searches of cars incident to arrest, against warrantless thermal imaging of a home, his anti-Terry view, to name a few), but it may still be a notable feature of relying exclusively on centuries-old perspectives to resolve contemporary problems — something to be considered in weighing the merits of interpretive methods.

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"it just happens that the practical impact is most felt around a crime where men are being prosecuted for crimes against women and girls"

That is a bit gratuitous and he even says so -- "at least equal number of" -- so what is the point of the comment? The protections of the BOR might be said overall to protect men more since they are the ones (as compared to women and children) who commit crimes too. I don't see where that really takes us here.

Posted by: Joe | Jun 6, 2013 10:14:39 AM

I would urge everyone to at least take a look at the table of contents of the free Google book Eugenical Sterilization in the United States By Harry Hamilton McLaughlin (1922).

It is the history of eugenical laws until Jan 1922 and depicts clearly how the statues, court briefs and rulings (included) evolved against people from alcoholics, the promiscuous, etc., etc., to career criminals. What makes it timely is that a silly cultural test then was sometimes enough to justify a sterilization. With genetic profiles stored there will come a genetic predictive element, a probability, a minority report, if you will. I think it's inevitable but some try to fight it anyway in the hopes the debate will slow it down.

Eugenics and the Nazis -- the California connection by Edwin Black is also about the same time period and a few years later.

Posted by: George | Jun 6, 2013 11:36:03 AM

"but it just happens that the practical impact is most felt around a crime where men are being prosecuted for crimes against women and girls.

It seems that Joe and I have picked up on the exact same thing. Joe is being kind when he ways the language is "gratuitous". In fact, if we simply swap out the word sex for race it seems to me that we are right back in Edith Jones territory. Of course, being a law dean is not the same as a judge but it still strikes me as a double standard.

Posted by: Daniel | Jun 6, 2013 6:22:48 PM

States of Delinquency: Race and Science in the Making of California's Juvenile Justice

Book Description

Publication Date: February 21, 2012 | Series: American Crossroads (Book 35)
This unique analysis of the rise of the juvenile justice system from the nineteenth to twentieth centuries uses one of the harshest states--California--as a case study for examining racism in the treatment of incarcerated young people of color. Using rich new untapped archives, States of Delinquency is the first book to explore the experiences of young Mexican Americans, African Americans, and ethnic Euro-Americans in California correctional facilities including Whittier State School for Boys and the Preston School of Industry. Miroslava Chávez-García examines the ideologies and practices used by state institutions as they began to replace families and communities in punishing youth, and explores the application of science and pseudo-scientific research in the disproportionate classification of youths of color as degenerate. She also shows how these boys and girls, and their families, resisted increasingly harsh treatment and various kinds of abuse, including sterilization.

Posted by: George | Jun 7, 2013 9:54:19 PM

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