At issue are laws in 29 states and on the federal level that allow some version of DNA collections. And the oral argument highlighted the difficulty the court sometimes has in squaring emerging or potential technological advances with centuries-old constitutional protections.
“How can I base a decision today on what you tell me is going to happen in two years?” Chief Justice John G. Roberts Jr. asked Maryland Chief Deputy Attorney General Katherine Winfree. “Don’t I have to base a decision on what we have today?”
As with many criminal procedure cases, it brought together justices who often are on opposite sides of the court’s ideological divide. Justices Antonin Scalia and Elena Kagan, for instance, were the most critical of Maryland’s law; Alito and Justice Stephen G. Breyer seemed most supportive.
For instance, when Winfree opened her argument by saying that Maryland’s law since 2009 had resulted in “225 matches, 75 prosecutions and 42 convictions,” Scalia pounced.
“That proves absolutely nothing,” the justice said. “I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too.”
And Breyer was one of the toughest questioners faced by the attorney for Alonzo Jay King Jr., whose DNA was taken after a 2009 arrest for assault and later used to connect him to an unsolved rape.
“I can argue that it is certainly a much lesser intrusion than fingerprints,” Breyer said of the inner-cheek swabs used to collect DNA samples. And “it’s much more accurate, and that doesn’t just help the defendant,” Breyer said. The innocent are protected when a DNA match identifies the true perpetrator, he said.
Maryland, backed at the court by all the states, the District of Columbia and the Obama administration, allows the collection of DNA samples from those arrested for, but not yet convicted of, a crime of violence, an attempted crime of violence, a burglary or an attempted burglary. If the arrest does not lead to a conviction, the sample is supposed to be destroyed.
King was convicted of rape after the DNA match. But the Maryland Court of Appeals overturned the conviction and the state’s law, saying it violated the Constitution’s protection against unreasonable searches and seizures. Roberts has kept the ruling from going into effect until the Supreme Court could consider the issue, and Maryland has continued the DNA collections.
Winfree said DNA is the most accurate way for identifying a person in custody, allowing courts to make informed decisions about bail and discovering whether the person is tied to other crimes.
“This is the fingerprinting of the 21st century, but it’s better,” Winfree said. “Typically, DNA evidence is used to identify rapes and murderers. Fingerprints typically do not solve those kinds of crimes.”