Ok, so here’s the breakdown of the Supreme Court’s decision in Maryland v. King, No. 12-207. The Court was split 5-4. In the majority are Justices Kennedy, Roberts, Thomas, Breyer, and Alito. The dissenting opinion was authored by (who else?) Scalia. He was joined by Justices Ginsburg, Sotomayor, and Kagan. I don’t know about you, but that seems like a rather odd lineup.
Now for the substance of the opinion. After discussing the technical aspects of the Maryland DNA Collection Act, the evolution of DNA technology in the criminal justice system, and the Federal national DNA database known as CODIS, the Court noted that the cornerstone of Fourth Amendment analysis of governmental intrusions is reasonableness. See Maryland v. King, No. 12-207, slip op. pg. 8. After weighing privacy interests v. law enforcement interests, the Court, as you know by now, sided with law enforcement. Rather than go through the opinion in an objective manner, I’d like to point out some passages that I find rather unsettling.
First, in an effort to describe the critical role DNA plays in the identification of arrestees, the Court made the following observations: (1) arrestees often conceal their true identity; (2) people detained for minor offenses often turn out to be the most devious of and dangerous criminals; (3) only hours after the Oklahoma City bombing, Timothy McVeigh was stopped for driving without a license plate; (4) police stopped serial killer Joel Rifkin for the same reason; (5) one of the terrorists involved in the September 11 hijacking was stopped and ticketed for speeding two days before the hijacking. See King, slip op., pg. 13.
In another disturbing passage, the Court discussed how an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and that such information will be used by courts to determine whether to release arrestees on bail. See King, slip. op, pg. 15. Specifically, the Court notes that knowing that the defendant is wanted for a violent offense based on DNA identification is especially probative of the court’s consideration of the danger the defendant poses to the community. See King, slip op., pg. 15. Interestingly, the Court cited to the Federal Bail Reform Act, 18 U.S.C. 3142, as being similar to the Maryland Act. See id. If you’re a Florida criminal defense attorney who appears regularly in Federal court, then you already know that the Bail Reform Act is significantly different from bail in Florida’s state courts. (While criminal defendants charged in Florida state court enjoy a constitutional right to bail, there is no such right under the Federal Act.) The Court also noted that even if an arrestee is released on bail, development of the DNA identification which reveals a defendant’s unknown violent past can and should be used to revoke his conditional release. See id. at pg. 17.
I don’t know about you, but the above sections seem to reflect an intent to incarcerate someone out of fear of what may happen in the future, as opposed to the offense for which he or she has actually been convicted. However, this mentality runs contrary to the cornerstone of the United States criminal justice system: that every person is presumed innocent.
While you should take a few minutes to review the opinion for yourself, the best part of the opinion is no doubt the dissent authored by Justice Scalia. After reading Scalia’s persuasive commentary, it’s hard to imagine how 5 Justices of the United States Supreme Court were able to reach the decision they did.