Scalia and the second person

I’m a bit swamped today, but I’m never too swamped to read a little bit of Scalia (it’s like snorting cayenne pepper, a sure-fire though unpleasant wake up technique).  This paragraph struck me as uncharacteristic in that he was directly addressing the American people, instead of whatever imagined audience of wealthy 18th century landowners he usually thinks of:

The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].”  I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any.  If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

He’s right, of course, that the law enforcement urges of this country are an ever-encroaching force that no politician or elected judge ever stands against, because soft-on-crime is a pretty serious charge.  I don’t remember Scalia writing opinions as pleas to citizens for public policy like this before.

When you really get into it, Scalia is still crazy for reasons that still get him to the right result.  His dissent is repeatedly offended by the fact that the test is invasive, in the sense that it requires an insertion of a swab into someone’s body.  But then you look at his comments from Missouri v. McNeely, earlier this year:

Scalia, raising an eyebrow, said: “I don’t know why you want to bite off more than you can chew. … What is reasonable for sticking a needle in your arm is not necessarily reasonable for asking you to blow up a balloon.”

If the reasonableness of DNA testing comes down simply to the method in which the DNA is taken, then the distinction that Scalia draws is meaningless; DNA can already be extracted from many different sources outside the human body.  Moreover, it’s pretty insane to think that a swab in the cheek is unreasonably invasive for a person about to live in GenPop for a year.



Having read it again, I don’t think Scalia really leans on the invasiveness as much as I thought on first reading. That said, I think it is very odd that he finds fingerprinting okay, because:

Even assuming so, however, law enforcement’s post-arrest use of fingerprints could not be more different from its post-arrest use of DNA. 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).

Would it matter if only .001% of suspects needed to be fingerprinted in order to identify them, and the rest of the time the fingerprints were only used for the purpose of matching against future crimes.  Every time a fingerprint is run through a database, it gets compared to every fingerprint in there (to some degree), as though you are being looked at every single time a fingerprint is scanned.  There are false positives there as well (though I imagine they are few).  I don’t know all the numbers here, but I suspect that fingerprints are very rarely used to identify an uncooperative suspect’s identity, but are often used to identify a pool of suspects while “crimefighting” as Scalia puts it.  I have a hard time believing that the constitutionality of a search depends on whether it is used for a certain purpose .001% of the time or not.

About nickgb

Computer programmer, lawyer, and aficionado of many dorky things that, in reality, you probably can't be an "aficionado" of. nickgb is a fanboy of Whedon, Sorkin, Gary Cole, Matthew Perry, and anything that brings together casts of his favorite shows (which, by definition, were all canceled "way too early").
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