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The Court has announced its opinion in Maryland v. King
June 3, 2013 11:43 AM   Subscribe

Full opinion (dissent at page 33): In what is arguably the most important criminal procedure case the Supreme Court has decided in decades, the Court today announced its 5-4 holding in Maryland v. King. The majority opinion, authored by Justice Kennedy, held that the 4th Amendment allows states to collect and analyze DNA from people arrested (but not convicted) of serious crimes.
posted by eenagy (112 comments total) 22 users marked this as a favorite

 
Scalia in dissent.
posted by Ironmouth at 11:46 AM on June 3, 2013 [4 favorites]


Antonin Scalia Throws A Bomb
posted by homunculus at 11:47 AM on June 3, 2013


SCALIA, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

what

Did I just have a stroke or
posted by elizardbits at 11:48 AM on June 3, 2013 [61 favorites]


This will produce a wave of false positives as people who don't understand math figure that a DNA match is absolute. This in turn will lead to the discrediting of DNA as evidence in the long run.
posted by MikeWarot at 11:49 AM on June 3, 2013 [12 favorites]


I'd totally be for searches like this if they are equally applied, but I am guessing not a lot of affluent white folk need worry about being printed and swabbed.
posted by cjorgensen at 11:51 AM on June 3, 2013 [1 favorite]


SCALIA, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

what

Did I just have a stroke or


Also wrote the majority opinion in Kyllo v. U.S., which found that scanning a house with an infrared scanner is a search under the 4th Amendment.
posted by Ironmouth at 11:52 AM on June 3, 2013 [10 favorites]


Great, now you can be brought in for an unpaid parking ticket and they'll have your DNA on file forever.
posted by Catblack at 11:52 AM on June 3, 2013 [4 favorites]


Well, to be fair... it's not like SCOTUS hasn't made mistakes in the past.

It's just sad to see the current group make so many mistakes right now.
posted by Blue_Villain at 11:53 AM on June 3, 2013 [2 favorites]


Only if they are serious parking tickets.
posted by feloniousmonk at 11:54 AM on June 3, 2013 [4 favorites]


Hm. Is there something about Justice Scalia's DNA he doesn't want the rest of us to know?
posted by aught at 11:54 AM on June 3, 2013 [5 favorites]


Look for arrests for every little forgotten law to go up. And cops doing lots and lots of DNA collection in the field.

Sometimes I just don't understand this court.
posted by Thorzdad at 11:55 AM on June 3, 2013 [5 favorites]


What a crock of shit.
posted by entropicamericana at 11:56 AM on June 3, 2013 [7 favorites]


Justice Scalia has this to say in the second paragraph of his dissent: "The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous."

A former student of mine wrote this: "I wish Scalia would write more opinions that I could get behind. His snark is much more satisfying and less obnoxious when I agree with him. "
posted by ferdydurke at 11:56 AM on June 3, 2013 [63 favorites]


MikeWarot: This will produce a wave of false positives as people who don't understand math figure that a DNA match is absolute. This in turn will lead to the discrediting of DNA as evidence in the long run.
The VERY long run.

After all, fingerprints are assumed by many juries to be golden truths, despite numerous examples of failures, both unintentional and malicious.
posted by IAmBroom at 11:56 AM on June 3, 2013 [5 favorites]


I wonder if the new civil disobedience will be trying to get arrested and swabbed?
posted by tilde at 11:57 AM on June 3, 2013


Did I just have a stroke or

There are a handful of criminal defendant's rights issues on which Scalia is pretty hardline. See, e.g., Kyllo v. US, where Scalia wrote the majority joined by Souter, Thomas, Ginsburg, and Breyer. He's also big on the Confrontation Clause. For example, he joined Kagan's dissent in Williams v. Illinois along with Ginsburg and Sotomayor. The dissent would have held that criminal defendants have a right to cross-examine experts who prepare lab reports that are used against them (e.g. drug tests and other forensic evidence); the majority held that they did not.
posted by jedicus at 11:59 AM on June 3, 2013 [6 favorites]


I agree with Antonin...excuse me I have to go bathe.
posted by AElfwine Evenstar at 12:01 PM on June 3, 2013 [5 favorites]


I'm also still trying to deal with the shock that Thomas didn't support Scalia.
posted by elizardbits at 12:02 PM on June 3, 2013 [4 favorites]


An unpaid parking ticket is not a "serious crime".

Getting your cheek swabbed is a minimally invasive procedure, and the benefits to society - both in protecting innocents and identifying the guilty - are substantial.

This is a good decision, IMO.

I am possibly the only person on MeFi that holds this opinion.
posted by kavasa at 12:03 PM on June 3, 2013 [2 favorites]


What a crock of shit.

Let's wait and see—SCOTUS hasn't yet ruled on fecal fingerprinting.
posted by Blazecock Pileon at 12:03 PM on June 3, 2013 [2 favorites]


SCOTUSBlog Details

Cornell's Legal Information Institute Overview

SCOTUSBlog Recap

Volokh Conspiracy Analysis

SCOTUSBlog Analysis
The Supreme Court, in the case of Maryland v. King, was asked to clarify the power of police — under the Constitution’s Fourth Amendment limit on police searches — to take a DNA sample from a person accused of crime, but not yet convicted of that crime. At issue was a Maryland law that required routine DNA sample of every person arrested by police for what that law defines as a “serious crime.”

The way the Maryland law works is that, if police have sufficient reason to believe that an individual has committed such a “serious” crime, that will justify taking that person to a police station to hold them there for further investigation of that crime, to see if charges are to be filed and prosecuted. Once such a person is going through the police station “booking” procedure, according to that law, police must take a DNA sample.

Maryland’s highest state court, the Maryland Court of Appeals, had ruled that taking the DNA sample without a court order and without the arrested individual’s consent is a violation of that person’s right of privacy under the Fourth Amendment.

The Supreme Court disagreed on Monday. The Court found that the public policy value of having a policy of routine DNA sampling of arrested persons is so great, and DNA technology so efficient, that this far outweighs the minimal intrusion on privacy that is entailed when police take a DNA sample.
Breyer and Scalia on the 4th Amendment
Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term: King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).
posted by dubusadus at 12:04 PM on June 3, 2013 [6 favorites]


Getting your cheek swabbed is a minimally invasive procedure, and the benefits to society - both in protecting innocents and identifying the guilty - are substantial.

You are supposed to scrape the cheek to get a good sample.

But on the second point, if this was an unmitigated good, then we would automatically put everyone into a genomic database from birth on.
posted by Blazecock Pileon at 12:06 PM on June 3, 2013 [26 favorites]


Even a cranky, homophobic old man is right twice a day once in a while.
posted by filthy light thief at 12:06 PM on June 3, 2013


Getting your cheek swabbed is a minimally invasive procedure

Unlike building a database containing the DNA of anyone who gets arrested.
posted by antonymous at 12:07 PM on June 3, 2013 [26 favorites]


I'd totally be for searches like this if they are equally applied, but I am guessing not a lot of affluent white folk need worry about being printed and swabbed.


Not likely.. the police have been having wet dreams about a DNA data base for a looooong time. Police power is an ever expanding beast that always needs to be checked, and the SC just failed miserably at providing that much needed check.

DNA collection after arrest, will routine now, just like fingerprinting. Everyone arrested, despite color, wealth, or social status, will have to submit. You can be sure of it.

Now the question is can the DNA be removed from the data base once someone is found to be falsely arrested. Fingerprints are supposed to be expunged.. does not look like DNA will be though.
posted by snaparapans at 12:07 PM on June 3, 2013 [7 favorites]


Getting your cheek swabbed is a minimally invasive procedure, and the benefits to society - both in protecting innocents and identifying the guilty - are substantial.

I can't believe I'm going to say this, but Scalia himself nails exactly why this doesn't actually matter: "Solving unsolved crimes is a noble objective but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."
posted by scody at 12:08 PM on June 3, 2013 [116 favorites]


I can see someone spending a night in the tank for getting rowdy drunk. Their DNA gets put in a big database against which all crime scene DNA is run against. 10 years later, A passel of cops show up at Onetime Rowdy Drunk's work to take him down to the station because he has the bad luck of matching. He clears his name but loses his job. JUSTICE IS SERVED.
posted by Foam Pants at 12:09 PM on June 3, 2013 [3 favorites]


Honest question from someone who has not followed this story/case very closely: How is this different from fingerprinting?
posted by Rock Steady at 12:10 PM on June 3, 2013


An unpaid parking ticket is not a "serious crime".

What difference does that make? We need to properly identify people who get parking tickets too, and the DNA test is for identification.
posted by Drinky Die at 12:11 PM on June 3, 2013 [1 favorite]


I can't read "legal"; was anything said about the permissible uses of the collected DNA? Did the Court indeed imply (as some have suggested) that the DNA could be entered into a database or does the majority opinion suggest it could only be used to match existing criminal evidence?
posted by Slothrup at 12:13 PM on June 3, 2013


How is this different from fingerprinting?

A fingerprint can only be used for identification and is difficult to plant as false evidence, while genomic data can be used for a whole host of purposes, like finding out what genetic ailments you might be predisposed to and changing what medical benefits you are accorded by Medicare or future public-private healthcare initiatives, and is material that is easier to plant — we shed DNA at just about every turn.
posted by Blazecock Pileon at 12:16 PM on June 3, 2013 [21 favorites]


I'm going to share with you all the comment I was about to make before RTFA'ing, just to save any other not-RTFA'ing mefites the trouble (on preview, hi there, Rock Steady):

"So, yeah, I have the same reflexive "ugh" reaction to this as most of you... but on the other hand we already routinely take fingerprints and photographs when someone is arrested. In what way is a DNA sample different?"

[Reads The Intro To The Fucking Dissent]

the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work

Oh. Wow, I just got totally burned by Scalia. Okay then.

[Reads The Rest Of The Fucking Dissent]

Yep. Got it. It's not about biometrics, it's about the justification for collecting those biometrics in the first place. Fingerprints aren't collected to solve crimes, they're (supposed to be) collected in order to identify people in custody; that they can sometimes be used to solve crimes later on is a side effect. DNA can't usefully be used to identify people in custody, because it takes too long to test it, so that justification shouldn't apply.

Incidentally, this is an awesome footnote:

Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no).
posted by ook at 12:16 PM on June 3, 2013 [21 favorites]


How is this different from fingerprinting?

The very briefest summary from the dissent (p. 13-14), which addresses this, is probably, to quote Scalia: Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else).
posted by cjelli at 12:17 PM on June 3, 2013 [2 favorites]


Honest question from someone who has not followed this story/case very closely: How is this different from fingerprinting?

From what I understand Scalia as saying:

Basically, the DNA tests are being used to solve past crimes. Fingerprints are actually used to identify people, with perhaps solving crimes as a bonus. You wait months for a DNA test, you check fingerprints quickly against a computer database. Trying to solve a crime makes it a search, trying to identify someone is just a normal part of figuring out who you have in custody.
posted by Drinky Die at 12:18 PM on June 3, 2013 [1 favorite]


Blazecock Pileon: material that is easier to plant — we shed DNA at just about every turn.

Hmm, yes. That is a very troublesome aspect I hadn't thought of.
posted by Rock Steady at 12:19 PM on June 3, 2013 [1 favorite]


Rock Steady: Honest question from someone who has not followed this story/case very closely: How is this different from fingerprinting?
It's in Scalia's 17ish page dissent, but TL/DR: Fingerprinting is not used to back-check against unsolved crimes, ergo the primary purpose is to establish identity - of the person who left the fingerprint for a specific incident that the defendent is being accused of.

DNA testing, especially as it is currently practiced, and even more especially as the acting state law limited its usage in originating case, is back-checked against a database of unsolved crimes - where clearly the primary purpose is to generate crime leads.

Evidence may not be invasively gathered - not even by rather trivially invasive gathering techniques, kavasa - without a search warrant under the 4th Amendment. Therefore, since the purpose of gathering DNA is not to establish whose spittle was at the particular crime scene, but to see if any other crimes can be attached to this defendent, it is evidentiary, not a piece of mere ID.

EDIT: Clearly, I do not understand the usage of "TL/DR:". At all. :)
posted by IAmBroom at 12:23 PM on June 3, 2013 [5 favorites]


So are they going to start requiring DNA samples at the border now?
posted by blue_beetle at 12:23 PM on June 3, 2013 [1 favorite]


I am possibly the only person on MeFi that holds this opinion.

Putting aside how wrong you are for one second, I would like to mention whenever I am writing a comment/ post that might end with the sentence you ended with, I close the tab, quick-as-I-can. It's the other bookend to "No offense intended".
posted by yerfatma at 12:26 PM on June 3, 2013 [9 favorites]


Slippery slope = logic fallacy
posted by stbalbach at 12:26 PM on June 3, 2013


Blazecock Pileon: material that is easier to plant — we shed DNA at just about every turn.

It's easy to plant semen or blood?

The fact of the matter is, if the police want to frame a suspect by planting evidence it wouldn't be very difficult for them to cook up a reason to obtain a DNA sample from that person. There are troublesome aspects to this decision, but this isn't one of them.
posted by Doug at 12:26 PM on June 3, 2013


and is material that is easier to plant — we shed DNA at just about every turn

Our own cstross' Halting State posits a near future where DNA is totally discredited because of criminals who bring vacuums with them to crime scenes and run them on reverse, spraying hundreds of individuals' DNA samples on the scene.
posted by yerfatma at 12:28 PM on June 3, 2013 [14 favorites]


I'm also still trying to deal with the shock that Thomas didn't support Scalia.

This idea that Thomas is Scalia's faithful apprentice or whatever is not really based in fact. They both vote together frequently because they're both quite conservative. Thomas is actually more dogmatically conservative, and there are more of a record of Scalia changing his vote to join with Thomas than the other way around.

To top it off, Scalia and Thomas aren't even the justices most likely to vote together. You don't hear people talk about how Sotomajor and Kagan are blindly following each other. I think Thomas is actually the craziest justice on the bench, but the way he's casually dismissed as just a pawn of Scalia is a weird meme that needs to die out.
posted by skewed at 12:30 PM on June 3, 2013 [20 favorites]


Something else that was really persuasive to me in what Scalia wrote was this:

All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.
posted by Drinky Die at 12:30 PM on June 3, 2013 [49 favorites]


But on the second point, if this was an unmitigated good, then we would automatically put everyone into a genomic database from birth on.

Oh, that's coming, no question. It isn't even a bad idea, but in practice it's going to be seriously fucked up.
posted by Brandon Blatcher at 12:30 PM on June 3, 2013 [1 favorite]


On average, from 1994 to 2004, Scalia and Thomas had an 86.7% voting alignment, the highest on the Court, followed by Ginsburg and Souter (85.6%).[100] Scalia and Thomas's agreement rate peaked in 1996, at 97.7%

Is this info from Thomas' wiki article then factually incorrect?
posted by elizardbits at 12:33 PM on June 3, 2013


Is this info from Thomas' wiki article then factually incorrect?

That date range (1994 to 2004) would preclude consideration of alignment involving several current justices.
posted by Slothrup at 12:35 PM on June 3, 2013 [1 favorite]


kavasa: Getting your cheek swabbed is a minimally invasive procedure, and the benefits to society - both in protecting innocents and identifying the guilty - are substantial.
In all seriousness, have you voluntarily registered your own DNA with the authorities? To obtain the substantial benefits?
Doug: It's easy to plant semen or blood?
There was a well-publicized incident involving a blue dress some years ago. Not exactly what you're talking about perhaps, but a proof of concept if you ask me.
posted by Western Infidels at 12:36 PM on June 3, 2013 [4 favorites]


That date range (1994 to 2004) would preclude consideration of alignment involving several current justices.

True, but even so, the given example of other seemingly matched votes is Kagan and Sotomayor, who have only 2.5 years of voting history to assess. The reason people draw the parallel between Thomas and Scalia's votes is because there is so much history of them from the past two decades.
posted by elizardbits at 12:39 PM on June 3, 2013 [1 favorite]


Alberta police are pushing for this as well: link.
It will be interesting to see how this gets taken up by other police forces.
posted by Lemurrhea at 12:42 PM on June 3, 2013


It's easy to plant semen or blood?
Apparently. “Any biology undergraduate could perform this.”

I recall seeing another article about this sort of thing a few years back, where basically someone could take something you tossed away (soda straw, cigarette butt, shed hair, etc), perform DNA amplification on it, and make a spray bottle full of your DNA. The criminal could then spray it all over a crime scene, overwhelming anything they left behind with your genetic signature.
posted by fings at 12:43 PM on June 3, 2013


Doug: It's easy to plant semen or blood?
You've never seen a squirt bottle?
posted by IAmBroom at 12:45 PM on June 3, 2013 [4 favorites]


Database of your DNA: OK
Database of whether you own a gun or not: No OK
posted by Joey Michaels at 12:45 PM on June 3, 2013 [55 favorites]


SCALIA, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

The same group agreed in another interesting recent Supreme Court case on criminal procedure, where the court held that a police officer was required to get a warrant before having a blood test done of an alleged drunk driver without his consent, under the circumstances of that particular case. (From that SCOTUS Blog post: "With his qualifications stated, Kennedy joined most of the Court opinion written by Justice Sonia Sotomayor and supported in full by Justices Ruth Bader Ginsburg, Elena Kagan, and Antonin Scalia.")

And if you listen to the oral argument in those cases (which you can track down on Oyez, a great resource), I think you'll find that Scalia can be just as acidic and impassioned in grilling the prosecution side as the defense side.

Notice that both of those cases refute the canard that Justice Thomas always follows Justice Scalia (which has been obvious at least since Hamdi v. Rumsfeld).

Scalia was also part of a recent majority decision holding that regulatory agencies have the power to interpret the limits of their own jurisdiction, notwithstanding that this raises serious concerns about separation of powers. (The majority was Scalia, Thomas, and all four liberal Justices.) In fact, Scalia has had a major role in affirming that the modern-day regulatory state is constitutionally permissible (notwithstanding that the Constitution doesn't use the word "agency," and uses words like "regulate" and "regulations" only when referring to Congress, not the executive branch).

It's also worth noting that there are more unanimous Supreme Court decisions than 5-4 Supreme Court decisions, and that's even among the tiny percentage of cases the Court chooses to decide. Of course, the split decisions tend to be the ones that dominate the headlines.
posted by John Cohen at 12:46 PM on June 3, 2013 [3 favorites]


skewed: I'm also still trying to deal with the shock that Thomas didn't support Scalia.

This idea that Thomas is Scalia's faithful apprentice or whatever is not really based in fact. They both vote together frequently because they're both quite conservative. Thomas is actually more dogmatically conservative, and there are more of a record of Scalia changing his vote to join with Thomas than the other way around.
Neither is it based on mere voting statistics. Thomas never, ever, ever asks questions during the proceedings. It's relatively hard to imagine him as a deep thinker who somehow has never once in his career as a SCOTUS Justice needed clarification on any point; it's rather easier to imagine him a stooge who passively follows others leads - as indeed he quite literally does in oral arguments, never leading the conversation anywhere at all.

That two clearly intelligent, erudite, and outspoken Justices often vote alike is not the same idea at all.
posted by IAmBroom at 12:48 PM on June 3, 2013 [1 favorite]


" It's relatively hard to imagine him as a deep thinker who somehow has never once in his career as a SCOTUS Justice needed clarification on any point"

That's quite an extrapolation from Thomas' reticence. And many people do consider Thomas to be a deep thinker. Cf Mark Tushnet
posted by MisantropicPainforest at 12:51 PM on June 3, 2013 [1 favorite]


It's relatively hard to imagine him as a deep thinker who somehow has never once in his career as a SCOTUS Justice needed clarification on any point

Well, you could read some of the opinions he has written, some of which aren't joined by anyone else. Of course, he had help from his clerks in writing these, as do all the Justices. But then, the Justices can also get help from their clerks in coming up with questions to ask in oral argument.
posted by John Cohen at 12:52 PM on June 3, 2013 [1 favorite]


One substantive difference between DNA sampling and traditional fingerprinting is that DNA markers are informative not only about the person typed, but about his or her relatives as well. The effective size of DNA databases is dependent in part on how tightly-defined the match criteria are (ie how many markers constitute a "hit")
posted by Svejk at 12:53 PM on June 3, 2013 [4 favorites]


Honestly, I'm surprised that this result is surprising to folks. Last year they held that any arrestee, even for a minor violation and not even rising to the "serious crime" discussed in today's opinion, can be strip-searched. Seems like a little bit more of an intrusion to me.

The law in this area, in most states and also sanctified by statutes across the country, has strongly pointed in this direction for some time.
posted by likeatoaster at 12:57 PM on June 3, 2013 [1 favorite]


However invasive a strip-search is, it happens once in time and I can then get my body out of that place to avoid it going forward. This is far worse.
posted by yerfatma at 12:59 PM on June 3, 2013 [3 favorites]


Because I don't really know: how accurate is DNA matching, really? Any resident experts?
posted by WidgetAlley at 1:01 PM on June 3, 2013


The CODIS STRs (the DNA profiles used by the FBI) are not thought to contain significant phenotypically-relevant information. However, there are large discrepancies among the many federal and state formal and informal databases as to how long the actual physical DNA samples are retained - it is these raw samples that are the greatest privacy risk.
posted by Svejk at 1:02 PM on June 3, 2013 [1 favorite]


On average, from 1994 to 2004, Scalia and Thomas had an 86.7% voting alignment, the highest on the Court, followed by Ginsburg and Souter (85.6%).[100] Scalia and Thomas's agreement rate peaked in 1996, at 97.7%

Is this info from Thomas' wiki article then factually incorrect?


I would presume it is, and it shows that the view of Thomas as Scalia's lapdog is strange. Scalia/Thomas agree at 86.7% while Ginsburg/Souter are at 85.6%. This roundup of the SCOTUS 2010 term shows most of the conservatives and liberals agreeing with each other aound 80% of the time. Apparently from the years 1994-2004 Scalia and Thomas's voting records were slightly more in alignment than anyone else's. In other recent years, it's been Roberts and Alito. Doesn't seem like a solid basis for an inference about a special relationship between Scalia and Thomas.
posted by skewed at 1:03 PM on June 3, 2013 [2 favorites]


fings: Hadn't heard about fabricating DNA from a previous sample. Very interesting.

You've never seen a squirt bottle?

My point isn't that the physical act of planting evidence is difficult. That would be absurd. My point is that, first, getting the sample to plant at the scene isn't particularly easy, especially in a form material to the investigation. The vast majority of DNA used to obtain a conviction is from blood, semen, skin scraped under fingernails and saliva left at a crime scene. It isn't from material we shed everywhere. More importantly, the police would have to already have a suspect in mind. This leads to my second point: if the police are going to the trouble of framing you, they don't really need to have your DNA on file. You're already screwed.

What's troubling about this decision is the civil liberty concerns it raises. The possibility of a DNA database facilitating police corruption just doesn't seem very likely to me.
posted by Doug at 1:04 PM on June 3, 2013


if this was an unmitigated good, then we would automatically put everyone into a genomic database from birth on.

[Reads The Fucking Majority Position]

A sample may not be added to a database before an individual is arraigned, and it must be destroyed if, e.g., he is not convicted.

Phew! There's a bullet dodged! Genomic database explicitly excluded from this decision!

Of course, that caveat is totally inconsistent with the "this is just for identification" argument the decision rests on.

As is the fact that the Maryland act only applies to convicted sex offenders (in 1994), no wait, only to violent criminals (in 1999), oh, no wait, how about "all felony convictions including some misdemeanor crimes" (in 2002), hmm, never mind, let's make it every one of "those individuals arrested of crimes of violence and burglaries", convicted or not (in 2009), "with the intention that crucial DNA hits will be identified earlier, crimes will be solved, and more crimes will be prevented." [source maryland.gov]

But hey, whatever, slippery slope is a logical fallacy, right?
posted by ook at 1:05 PM on June 3, 2013 [23 favorites]


Thomas never, ever, ever asks questions during the proceedings. It's relatively hard to imagine him as a deep thinker who somehow has never once in his career as a SCOTUS Justice needed clarification on any point; it's rather easier to imagine him a stooge who passively follows others leads - as indeed he quite literally does in oral arguments, never leading the conversation anywhere at all.

I recall reading that the reason why he doesn't ask questions during oral argument is because he believes the justices shouldn't be leading the conversation anywhere in the first place. Apparently he's not the only justice who's been like that, just the only one who's active now.
posted by cosmic.osmo at 1:06 PM on June 3, 2013


Having trouble deciding whether this or New London makes me more upset. It's probably this.
posted by stoneweaver at 1:08 PM on June 3, 2013 [1 favorite]


The random match probability (prob that person picked at random has the same profile as the DNA evidence) for a 13 locus CODIS profile is estimated at around 10^-14 to 10^-15. This number can be attenuated by other factors related to the sample composition (demographics of the database and population at large), but in cases where lab errors are not suspected is still very low.
posted by Svejk at 1:08 PM on June 3, 2013


It's easy to plant semen or blood?

Worse than that, Doug, it's easy — and these days, ridiculously cheap — to pay a third party to synthesize DNA fragments for you that could be planted as ersatz body fluids, which would yield a match with standard forensic techniques. It's even a peer-reviewed thing:

The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.

“You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.”


If a government wanted to go after someone — a political or social dissident, for example — this would be a good way to do it: nail someone for a lesser charge that gets genomic samples taken, then PCR-up some material and dirty a violent crime scene.

If you want an idea of how serious the people in charge see this, high-ranking government officials — for example — have their glasses and dinnerware removed and cleaned after the meal is over. No one in power wants their genomic samples taken, however inadvertently.

The major problem with this ruling probably isn't going to come from government framing people, though. The larger problems will arise as governments complete handing over formerly public functions to private capital, like insurance companies, which will more than certainly monetize this data in ways that the SCOTUS majority could not foresee, for being powerful enough to be insulated from much understanding of how American capitalism has stepped into roles formerly assigned to public government, with accordingly much less legal oversight (cf. Citizens United, etc.).
posted by Blazecock Pileon at 1:17 PM on June 3, 2013 [27 favorites]


I recall reading that the reason why he doesn't ask questions during oral argument is because he believes the justices shouldn't be leading the conversation anywhere in the first place.

As I understand it, it's simply that he thinks oral argument is pointless showboating. Which is not a completely crazy opinion; everything relevant should already be in the briefs.
posted by ROU_Xenophobe at 1:21 PM on June 3, 2013 [8 favorites]


There are a handful of criminal defendant's rights issues on which Scalia is pretty hardline.

Yeah, this was absolutely, 100% Not A Surprise from Scalia. I'm just sad he was in the dissent and couldn't get another to join them and make it right.
posted by corb at 1:22 PM on June 3, 2013 [2 favorites]


high-ranking government officials — for example — have their glasses and dinnerware removed and cleaned after the meal is over

With you on the rest, but I'm gonna have to call [citation needed] on this bit.
posted by ook at 1:24 PM on June 3, 2013 [1 favorite]


With you on the rest, but I'm gonna have to call [citation needed] on this bit.

Hacking the President’s DNA

The U.S. government is surreptitiously collecting the DNA of world leaders, and is reportedly protecting that of Barack Obama. Decoded, these genetic blueprints could provide compromising information. In the not-too-distant future, they may provide something more as well—the basis for the creation of personalized bioweapons that could take down a president and leave no trace.
posted by Blazecock Pileon at 1:26 PM on June 3, 2013 [4 favorites]


Right you are, then. Thank you.
posted by ook at 1:30 PM on June 3, 2013 [2 favorites]


All of the news sites are either parroting each other, or are all getting their news from the AP feed. They all say the same thing: "...28 states and the federal government allow DNA swabbing of arrestees..."

Does anyone know in which states this now-sanctioned fishing expedition is allowed? I haven't been able to find a list.
posted by spacely_sprocket at 1:55 PM on June 3, 2013


“Any biology undergraduate could perform this.”

Just chiming in to say that the barrier to entry is even lower; a day or two of intense internet research and any reasonably interested layperson could go ahead do this easily.
posted by kurosawa's pal at 2:02 PM on June 3, 2013


From the opinion, describing the provisions of the Act: Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause . . . the DNA sample shall be immediately destroyed.” §2–504(d)(2)(i). DNA samples are also destroyed if “a criminal action begun against the individual . . . does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.” §2–511(a)(1).
This text is ambiguous to me. It appears to permit the indefinite retention of the DNA profile (a bioinformatic construct that can be created upon arraignment) and the uploading of this profile to CODIS, while directing that the actual physical DNA sample must be destroyed. This reading reduces the genetic privacy concern, but would still place arrestees in the cold-hit suspect pool.
posted by Svejk at 2:04 PM on June 3, 2013


Here is my question: Do we actually want to live in a society where it is impossible to get away with breaking the law?
posted by empath at 2:05 PM on June 3, 2013 [5 favorites]


But hey, whatever, slippery slope is a logical fallacy, right?

No, not always. I'll just leave this here.

The analysis in this Article implicitly rebuts the argument that slippery slope arguments are inherently logically fallacious: the claim that A's will inevitably lead to B's as a matter of logical compulsion might be mistaken, but the more modest claim that A's may make B's more likely seems plausible. The analysis also responds to the assertion that slippery slopes can be ignored because "someone who trusts in the checks and balances of a democratic society in which he lives usually will also have confidence in the possibility to correct future developments. If we can stop now, we will be able to stop in the future as well, when necessary; therefore, we need not stop here yet."
posted by AElfwine Evenstar at 2:05 PM on June 3, 2013 [1 favorite]


that was pretty much my point, yes
posted by ook at 2:34 PM on June 3, 2013


Scalia is usually pretty libertarian when it comes to criminal procedure. no surprise (unless one get all one's news from alternet)
posted by jpe at 2:35 PM on June 3, 2013 [1 favorite]


"A fingerprint can only be used for identification and is difficult to plant as false evidence, while genomic data can be used for a whole host of purposes, like finding out what genetic ailments you might be predisposed to and changing what medical benefits you are accorded by Medicare or future public-private healthcare initiatives, ..."

Scalia's otherwise cogent points aside, the techniques used in DNA profiling do not work this way. Theoretically if the swabs were saved and additional tests performed this could become a concern, but the data that is stored has no meaningful medical or diagnostic value. Also, while whole genome sequencing, which really would cause concern, is getting cheaper all the time, the rate at which it is doing so is decelerating and will still be out of reach of law enforcement for a long time.
posted by Blasdelb at 2:37 PM on June 3, 2013


I don't understand how anyone on the court can identify themselves as a conservative, and rule in favor of an agency of the government's invasive trespass of my body and the seizure of my bodily fluids without my consent. I imagine the founding fathers having now moved beyond rolling over and beginning to claw at their coffin lids.
posted by spacely_sprocket at 2:37 PM on June 3, 2013 [1 favorite]


Here is my question: Do we actually want to live in a society where it is impossible to get away with breaking the law?

Not if we also live in a society where even the Justice Department doesn't know with certainty how many criminal laws there are. Given that we're all likely committing criminal offenses routinely and unknowingly, a certain amount of police ineffectiveness is indeed a feature, not a bug, unless you're the sort to have an unironic "Josef K Was Guilty" bumper sticker or something.
posted by kengraham at 2:44 PM on June 3, 2013 [1 favorite]


Scalia's otherwise cogent points aside, the techniques used in DNA profiling do not work this way.

Thank you, but I never said they did.
posted by Blazecock Pileon at 2:45 PM on June 3, 2013


"Hacking the President’s DNA"

While the concern over high profile framings that Blazecock is raising here is valid, I just wanted to note that this specific article is filled with many fundamental misunderstandings of both the possibilities and limitations of molecular genetics and 'synthetic biology;' and the authors are bullshit artists who lack either the education or the disposition to accurately represent it. While Obama does indeed have his glasses and dinnerware removed and cleaned after the meal is over by the secret service, for presumably exactly the kinds of reasons Blazecock has mentioned, the authors of this article are preying on the scientific illiteracy of their audience and counting on there being few enough people with the education to call them out on the sizable amount of fundamentally false other shit they are communicating for them to get away with it. Its worth being wary of the whole cottage industry that has been recently built around the singularity movement, set up to help people pretend they understand biology, and molecular genetics in particular, by calling it synthetic biology and making fanciful claims that people have different interests in seeming true.
posted by Blasdelb at 2:48 PM on June 3, 2013 [1 favorite]


I don't understand how anyone on the court can identify themselves as a conservative, and rule in favor of an agency of the government's invasive trespass of my body and the seizure of my bodily fluids without my consent. I imagine the founding fathers having now moved beyond rolling over and beginning to claw at their coffin lids.

Well, they're only saying that this is a constitutionally permissible action, that is, the states can choose whether or not to let their police departments do this. It's possible that the DOJ will tell the FBI not to do this, and states will decide it's a bad idea as well. So I think it could be legitimately described as judicial conservatism, tending to preserve state power to determine for themselves if this sort of thing is a good use of resources, is too intrusive, etc. I tend to believe that involuntary DNA sampling from from unconvicted suspects is unreasonable under the 4th amendment. But I don't think it's a crazy opinion, just another sign that we need to create a regime of privacy laws that will take into account facts of modern technology. This decision does not preclude that sort of law, it just puts the public, as well as legislators on notice that our current laws do not protect citizens from a certain sort of action.
posted by skewed at 2:52 PM on June 3, 2013 [2 favorites]


Also, something not mentioned in this article,

Any lab with fifty bucks for new primers and a technician with half a brain should be able to trivially detect and demonstrate any crime scene tampering with synthesized DNA that uses this or any conceivable current method. Of course one would need to know to look for it, but the next time a president's DNA ends up on someone's dress this wouldn't need to be a significant concern.
posted by Blasdelb at 3:03 PM on June 3, 2013 [1 favorite]


The Dark Side of DNA Evidence

"But beyond privacy concerns, there is another reason to reconsider DNA collection on arrest. Because people of color are disproportionately stopped, searched and arrested, they will disproportionately bear the burden of this genetic dragnet. And because DNA samples can be used to establish family relationships, it has the potential to widen the surveillance to entire communities. . . .

"This is already happening here. By 2011, African-Americans made up 40 percent of the Combined DNA Index System (CODIS), according to Jeremy Gruber, executive director of the Council for Responsible Genetics. Established by the DNA Identification Act in 1994, CODIS is used by the FBI to store and search DNA profiles collected by federal, state and local law enforcement. When exact matches cannot be found for an unknown sample, many states resort to partial matches, using different markers to track down potential family members.

"Because African-Americans are significantly overrepresented in CODIS, it is possible to use the database to identify up to 17 percent of the country’s entire African-American population, researchers at Duke University’s Center for Genome Ethics, Law and Policy found in 2011. Although only four states explicitly permit familial searches, the ACLU has found that nineteen have used a partial match to connect an unknown sample with a potential relative of someone in CODIS—even though fifteen of those states prohibit using the database for this purpose. In California, which permits familial searching, an “initial candidate list” of up to 168 people is created. That list is then narrowed and nonrelatives removed. A potential relative who remains on the list becomes vulnerable to police investigation. This is why Howard University’s brief calls these efforts a ''probable cause' generator.'"


In other words, police can run the DNA from any crime scene against their database. As of right now, that database contains enough samples to be able to identify one fifth of the African-American population of the United States. So if you're unlucky enough to be related to someone who has committed a crime and left their DNA behind, you can be questioned, harassed, investigated, and dragged into the criminal justice system based on absolutely nothing to do with you, all because someone who has genes similar to yours may have done something wrong at some point. And if they keep collecting these samples, the number of people of color who can be tied based on their family members is only going to get larger. This will not happen to white people. So it will be easier and easier for police to investigate crimes involving people of color, especially as the technology gets more sophisticated to identify DNA from things like the saliva left on a crack pipe or the skin cells left on the handle of a knife. And so when they're focused on getting their numbers up, which they always are, those are the crimes they'll focus on. And the already shameful targeting of people of color by law enforcement will only get worse.
posted by decathecting at 3:45 PM on June 3, 2013 [13 favorites]


Also check out The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Identification) The author reviews the risks of being called in solely because your miscreant relative is a pretty decent match to your DNA, specific instances of errors at the lab level leading to mis-identification in criminal cases and also reviews the likelihood of being accused solely due to hits in databases without any other signs of the client being at the crime scene.
posted by beaning at 4:43 PM on June 3, 2013


Not really surprised at this from Scalia, am surprised at people who are surprised.

As far as Thomas being quiescent, that's the least crazy thing about him. It's really odd to argue from that that he isn't a thinker. It's probably in general terms an indicator of the opposite. In judicial terms, it's a pretty strong position to take that the parties before the court should be the ones raising questions about the other's arguments.

I have to say that as a policy position I would much rather that DNA collection were limited to situations where there's an obvious and direct state interest, such as with sex offenders, but as a juridical position I think it's hard to argue that one is OK and the other isn't.
posted by dhartung at 5:12 PM on June 3, 2013


An explanation of Scalia's and Breyer's decisions in Fourth Amendment cases, by Orin Kerr at Volokh Conspiracy:
Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term: King (today's case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government's side in each of the Term's non-unanimous Fourth Amendment cases: King (in which he joined Kennedy's majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).

Some Fourth Amendment cases have drawn out those dynamics in the past. For example, Justice Scalia voted for the defense and Justice Breyer for the government in Arizona v. Gant (2009). But I don't recall such a consistent run of Fourth Amendment cases in which Justice Scalia was on the defense side and Breyer was on the government side.

What explains the trend? It might just be a coincidence. But I suspect some of it reflects the fact that a lot of the recent cases have involved Fourth Amendment balancing. Scalia dislikes balancing, while Breyer revels in it. Those different instincts may pull their votes in different directions. Also, defense counsel have realized that Justice Scalia is in play in Fourth Amendment cases if you can find him the kind of argument that he finds appealing. So we're seeing more defense-side briefs targeting Scalia's vote. But the problem is that Scalia and Breyer look at Fourth Amendment cases in exactly opposite ways. The kind of argument that appeals to Scalia can lose Breyer, and the kind of argument that appeals to Breyer can lose Scalia.
posted by John Cohen at 6:13 PM on June 3, 2013 [1 favorite]


“Database of your DNA: OK
Database of whether you own a gun or not: No OK”


I'll give them my DNA when they pry it from under my cold, sticky, shower floor.

Yeah, one trick ponies can be extraordinarily frustrating. Hey, we’re against ALL intrusions on the civil liberties of innocent people on principle, no matter the specific subject it applies to, right guys?
*crickets*
Guys?


“…A potential relative who remains on the list becomes vulnerable to police investigation. This is why Howard University’s brief calls these efforts a ''probable cause' generator.'"
And so when they're focused on getting their numbers up, which they always are, those are the crimes they'll focus on.”


I just read the Officer Serrano thread and I’m thinking of how alienated people get with the street stops. Imagine DNA collection. (Richard Pryor - "Get out of the car, there was a robber, the n*censored*r looked just like you. All right, put your hands up, take your pants down, spread your cheeks!")

Or imagine if getting a semen sample is legally ruled as the best method for DNA collection.
Gives new meaning to the term ‘stop and frisk.’

But I think that’s the big picture that it can be easy to miss. Not so much the slippery slope, but unintended spin off consequences.
Someone might have no problem with giving some of their DNA or think it’s ok to let law enforcement collect it. But then you have all the associated information, family connections, etc.
So your brother or cousin – or potential relative - gets swabbed, does that give some future investigator probable cause to come knock on your door?

An extension of the "guy who looked just like you" thing.
posted by Smedleyman at 6:22 PM on June 3, 2013 [1 favorite]


kavasa: "Getting your cheek swabbed is a minimally invasive procedure, and the benefits to society - both in protecting innocents and identifying the guilty - are substantial."

You know if this was really true they should make typing a requirement for getting a driver's licence. Arrestees are just as inoccent as people in the DMV line.

Doug: "It's easy to plant semen or blood?

The fact of the matter is, if the police want to frame a suspect by planting evidence it wouldn't be very difficult for them to cook up a reason to obtain a DNA sample from that person. There are troublesome aspects to this decision, but this isn't one of them.
"

I wouldn't be worried so much about police corruption as the ability for acquaintances and vindictive exes being able to spread one's DNA around a crime scene to either cover up their involvement or to frame people.

Doug: " The vast majority of DNA used to obtain a conviction is from blood, semen, skin scraped under fingernails and saliva left at a crime scene. It isn't from material we shed everywhere. More importantly, the police would have to already have a suspect in mind. This leads to my second point: if the police are going to the trouble of framing you, they don't really need to have your DNA on file. You're already screwed."

The police _don't_ already have a suspect in mind. That is the whole problem. They are taking a DNA sample and then running it against a database of unsolved crimes where they collected DNA. It's really easy to come up with cases where this can go horribly wrong.
posted by Mitheral at 6:31 PM on June 3, 2013 [1 favorite]


Mitheral: Right. I should have been more clear. I was referring to cases in which the police are planting evidence. And I hate to beat a dead horse, but it's already possible for an ex to frame someone by planting DNA evidence at a crime scene. For the time being the police do not somehow vacuum crime scenes looking for DNA in dust. If your ex has access to your bodily fluids (which, ya know, they might) and access to a crime scene (less likely, but I suppose it happens) and knows no other DNA would be found at the crime scene then you are already in trouble. A DNA database wouldn't make that scenario much easier to pull off, aside from removing the step of someone calling in an anonymous but credible tip to the police. All this worry about DNA databases being used to frame people seems a bit overly conspiratorial and paranoid.

Of course I also just learned that it's easy to synthesize fake DNA-rich blood and that world leaders live in mortal fear of using straws, so what do I know?
posted by Doug at 7:17 PM on June 3, 2013


They are taking a DNA sample and then running it against a database of unsolved crimes where they collected DNA. It's really easy to come up with cases where this can go horribly wrong.

Yes, we can all imagine some very scary horror stories. I think it's more likely that doing such a search of old cases could actually result in the exoneration of a lot of people who are in prison and shouldn't be. That's just me. That being said, I still don't think I agree with the court on this case.
posted by Doug at 7:23 PM on June 3, 2013


> I think it's more likely that doing such a search of old cases could actually result in the exoneration of a lot of people who are in prison and shouldn't be.

What?! How would this work?
posted by lupus_yonderboy at 7:30 PM on June 3, 2013 [2 favorites]


> All this worry about DNA databases being used to frame people seems a bit overly conspiratorial and paranoid.

Don't forget that during the RNC the NYC police arrested about 1800 people, charging them with serious felonies - but when the video evidence was reviewed, many if not most the charges were dropped because the police had perjured themselves (and activists in New York have been trying to get the city to reveal the names of the police officers ever since). In fact, they ruled eight years later that these arrests were un-Constitutional - not that this had any effect on anything.

So here's at least one solid, documented case where the police deliberately tried to frame a large number of people for political reasons. I hardly think it's "paranoid" to assume they'll do it again.

And this is hardly new. It's hard to believe that a viable Presidential candidate could be arrested, sentenced to ten years in jail and permanently disenfranchised, simply for giving a speech, but it happened - and then Debs got 3.4% of the vote, almost a million people, as write-ins when he was in jail.
posted by lupus_yonderboy at 7:42 PM on June 3, 2013 [5 favorites]


I think it's more likely that doing such a search of old cases could actually result in the exoneration of a lot of people who are in prison and shouldn't be.

The police don't exonerate people.
posted by dirigibleman at 7:45 PM on June 3, 2013 [1 favorite]


> The police don't exonerate people.

Even if they did, it's hard to see how the absence of someone's DNA would somehow exonerate them once convicted. And I imagine that close to zero of these old cases would have any sort of DNA record anyway...

I actually came back to say something more general:

> All this worry about DNA databases being used to frame people seems a bit overly conspiratorial and paranoid

Overall, the idea that "we can trust the people in charge, so it's paranoid to want legal protections from them" is completely against the fundamental values of the United States. The whole reason the Constitution is set up as it is, to offer a great deal of protection to individuals at the cost of hampering the activities of government and law enforcement, is precisely to avoid having to trust them to magically "do the right thing" out of the goodness of their hearts.
posted by lupus_yonderboy at 7:52 PM on June 3, 2013 [2 favorites]


Thomas never, ever, ever asks questions during the proceedings. It's relatively hard to imagine him as a deep thinker who somehow has never once in his career as a SCOTUS Justice needed clarification on any point [...] never leading the conversation anywhere at all.

Regardless of what you think of Thomas politically, this is an unfair characterization of a principled position. He never asks questions during oral argument precisely because he is on record as believing that the Justices should not be leading the conversation. Other Justices disagree, and ask questions (as it is their right to do), but he doesn't think that's the way that oral argument should work and thus he doesn't partake of that particular opportunity. I'm not sure whether I agree with him, but it's a valid position to hold.

There are other, greater things you can fault him on if you like, but I don't think that's one of them. It's a quirk, but not much more.
posted by Kadin2048 at 7:55 PM on June 3, 2013 [3 favorites]


I think it's more likely that doing such a search of old cases could actually result in the exoneration of a lot of people who are in prison and shouldn't be.

You do realize that when innocent people are wrongfully convicted of crimes, the crimes for which they are convicted become officially "solved," right? And therefore won't be in the pool of "unsolved" crimes for which the police would be looking for new leads?

DNA most certainly has exonerated many innocent people -- but only after defendants win the right to DNA testing on appeal (a process that can take years), NOT because the police decide to open closed cases.
posted by scody at 9:38 PM on June 3, 2013 [3 favorites]


I just read the whole opinion and I think both sides made fascinating arguments. I wish I understood better Scalia's contention that probable cause for a search requires individualized suspicion. The dissent states:
As ratified, the Fourth Amendment’s Warrant Clause forbids a warrant to “issue” except “upon probable cause,” and requires that it be “particula[r]” (which is to say, individualized) to “the place to be searched, and the persons or things to be seized.” And we have held that, even when a warrant is not constitutionally necessary, the Fourth Amendment’s general prohibition
of “unreasonable” searches imports the same requirement of individualized suspicion.
It seems like he is jumping from the requirement that the police can't just look everywhere without probable cause and the need to state where/what/who they are going to search to saying something very different--that you can only search for evidence about the specific crime at hand.

It is a sad fact that violent criminals tend to be repeat offenders. If you are arrested for a violent crime, there is a reasonable suspicion that this isn't your first time. Obtaining fingerprints and a DNA sample are methods for checking on this reasonable suspicion.
posted by Cassford at 10:22 PM on June 3, 2013


The United Kingdom uses newly collected DNA to solve older crimes.


The case for a National DNA database

Almost exactly twenty-nine years ago, Colette Aram, a 16-year-old trainee hairdresser from Keyworth in Nottinghamshire was abducted, raped and strangled. The case was so shocking that it featured on the first ever edition of Crimewatch. There were a few clues and at the outset of the investigation the police must have been confident they’d get their man. They had a stolen red Ford Fiesta and a paper towel used by someone who had eaten a ham sandwich in a nearby pub and was noticed to have blood under his fingernails. But the killer was confident that he would not be caught and – chillingly - left a handwritten message to that effect. He was right to be confident. Despite a massive police operation and the interviewing of twenty thousand individuals, and for twenty-seven years, he remained free.
Then, in June 2008, the murderer’s 19-year-old son was arrested for careless and inconsiderate driving. He was photographed by the police who also took his fingerprints and a DNA sample by swabbing his cheek.
A few months later the driver’s DNA profile was flagged as a close but not perfect match to the profile of the probable killer of Colette. Plainly, he wasn’t the killer; Colette had been savagely murdered before he was born. But his father and two uncles were arrested and had their DNA taken. And in December 1978, just six months after his son had been stopped for careless driving, 51 year old Paul Hutchinson, pleaded guilty to murdering Colette and was sentenced to life imprisonment.
Detections of crime due to the presence of DNA are increasing. Between 01 April and 30 June of this year the National DNA Database produced 29 matches to murder, 91 to rapes and 6,094 to other crime scenes. Since 1998, more than 300,000 crimes have been detected with the aid of the Database

But the potential of the database is limited by the fact that it is incomplete. Had all adults in the UK been required to provide a DNA sample, a relatively minor inconvenience, then we would not have had to wait for Colette’s murderer’s son to drive inconsiderately before his father was brought to justice.


I don't think it is such a bad thing.
posted by JujuB at 11:22 PM on June 3, 2013 [1 favorite]


The United Kingdom uses newly collected DNA to solve older crimes.

The majority claims that routine collection of DNA is no different from routine collection of fingerprints. The story mentioned above proves that that claim is complete nonsense.
posted by one more dead town's last parade at 11:34 PM on June 3, 2013 [1 favorite]


Decathecting has identified one of the more controversial aspects of DNA database usage - familial searching. The Maryland Act that is the subject of this ruling appears to prohibit familial searching [These are searches against the database where the stringency criteria is reduced to call matches on fewer than 13 STRs. The way the markers match can give hints about the familial relationship - 1 matching allele at each of the 13 STR loci suggests a parental relationship, 1 or two matching alleles at some subset of the 13 loci suggest siblings, etc.] on arrestee profiles. But this is where policies on sample and profile retention and inter-agency sharing become important. There is great heterogeneity in the permissible uses of DNA samples and profiles among the many law enforcement agencies - for instance, some states are permitted to collect DNA from juveniles.

Additionally, it appears there are many unofficial DNA databases that are subject to even less scrutiny. Some are created by sub-federal authorities and are subject to different guidelines and scrutiny, and difficult to query. Others are not curated by the government but may have been created for medical or academic research - the data on these is hard to find. For example, the BTK killer was linked to crime scene evidence after authorities obtained a court order for the suspect's daughter's medical records and tested a pap smear sample. Also troubling is the practice of storing samples from crime victims (particularly sexual assault victims). Any samples volunteered by persons in the course of an investigation may end up in one of these unregulated databases - it is not inconceivable that these persons, as well as the population of crime victims, are disproportionately minority.

It should also be noted that as the number of STRs used to define a match is reduced, the quality (accuracy as well as precision) of those matches also declines. If contact with the state police apparatus is considered a cost, that cost is likely to be borne disproportionately by minorities. The number of innocent persons brought into adversarial contact with law enforcement can grow exponentially as the match criteria are loosened.
posted by Svejk at 12:18 AM on June 4, 2013 [4 favorites]


To further elaborate on the point about the potential for disparate impact:

Right now there are roughly 6 million samples in CODIS and an unknown number in other DNA repositories. Racial composition data on CODIS is not available to the public, but since it is based on some proportion of persons convicted of felonies, and arrestees, we can estimate from racial disparities in arrest and conviction rates that the database is around 40% black and 60% white. As more arrestees are added to the database, it should become even more disproportionately black. Estimates on Hispanic composition are difficult because Hispanics are treated inconsistently when demographic data are taken.

STR markers are highly heritable. It can be estimated from STR inheritance patterns, and from the composition of the current database, that roughly 17% of the black population of the US, and 4% of the white population, is searchable through CODIS. This does not include other state-level or 'shadow' databases. This disparity is likely to increase if arrestees continue to be included in the database and familial searching continues to be permitted. This disparity will be compounded if database searching, which is roughly 4X better at identifying blacks than whites, leads to more black arrests and/or convictions and the resultant submission of more black samples to the database. Blacks could essentially be forced to defend themselves against a 'higher standard' of evidence than similarly situated white defendants (considering jury predispositions toward DNA evidence).

Familial searching also means that persons having larger families than average (a characteristic of a number of ethnic and religious groups) could be subject to increased police scrutiny (ie a sample from one brother can implicate any number of other siblings). On a state rather than federal level, it means that persons having a greater proportion of their relatives living in the same state (eg persons of lower socioeconomic status) could be subject to increased scrutiny.Foreign detainees are also subject to DNA testing under certain conditions; if they have relatives in the US, those relatives are essentially in the database as well. One could certainly imagine that there might be ethnic disparities in the group of Americans affected by this testing.

These features of the database are why when DNA samples are taken, questions about sample and profile archiving are just as relevant as questions about permissible activities at the time and point of sample collection.
posted by Svejk at 12:42 AM on June 4, 2013 [3 favorites]


Cassford: "If you are arrested for a violent crime, there is a reasonable suspicion that this isn't your first time."

You aren't guilty at that point. Why not wait to collect DNA until the person is actually convicted.
posted by Mitheral at 5:30 AM on June 4, 2013 [3 favorites]


Mississippi is using umbilical cord blood from 16 year-olds who give birth to track down the father's DNA to charge them with statutory rape. NPR story.
posted by shothotbot at 7:30 AM on June 4, 2013


The thing about Scalia is that he is pretty predictable. Black and white thinking. He sides with the Constitution. Thomas is predictable in that he almost always sides with authority.

I'm not sure how I feel on this case. It hinges on the unreasonableness of the search. I'm not sure collecting DNA is unreasonable.

(Quibble: justices don't vote, they opine.)
posted by gjc at 8:58 AM on June 4, 2013


Mississippi is using umbilical cord blood...
as a deterrent - holy cow.

From shothotbot's link: "Republican state Rep Andy Gipson who drafted the bill, said one of his motivations is to find "who harmed that child," because these new mothers often refuse to name the father of their child."
posted by Smedleyman at 11:07 AM on June 4, 2013 [1 favorite]


Perhaps relevant: DNA evidence not always a slam-dunk.
posted by dhartung at 1:48 AM on June 5, 2013 [2 favorites]


Genetic Profiling
posted by homunculus at 9:45 PM on June 13, 2013


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