Yesterday’s case arose after police arrested Alonzo King for threatening several people with a shotgun, and found his DNA matched that from an unsolved 2003 rape. King challenged the constitutionality of Maryland’s 2008 law requiring arrestees to submit to DNA testing.
The rapid advance of DNA matching technology, which can establish a speck of tissue or bodily fluid as belonging to one and only one individual in the world, has opened up a new era in police forensics, with detectives regularly closing old cases and solving newly committed ones. Equally exciting, the tests have cleared many innocent persons by establishing others’ responsibility.
But along with the good comes a new potential, warned against by civil libertarians, for the authorities to use DNA access to track citizens through life. Who was at the closed‐door meeting of political dissidents? Swab the discarded drinking cups for traces of saliva, match it to a universal database, and there you’ve got your list of attendees. Want to escape a bad start and begin life over in a different community? Good luck with that once your origins are an open book to officialdom.
In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one‐third of Americans will be arrested for some offense by age 23.”) Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?
With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be‐all and end‐all of criminal process: