The Slippery Swab (Update)

Though it's been less than 24 hours since the Supreme Court issued its opinion in Maryland v. King approving the Maryland law that permits the taking of DNA from presumptively innocent defendants, the blawgosphere is already awash in posts decrying the intellectually bankrupt rationale of Justice Kennedy, extolling the bombastic outrage of Justice Scalia and exposing the constitutional duplicity of Justice Breyer. No one needs me to add to the misery, so I won't.

But I will take heed of Gerard Magliocci's post at Concurring Opinions about slippery slopes.

With the . . . ahem . . . annual avalanche of Supreme Court opinions on the way, I thought I’d raise a question about how slippery slope arguments play out.  The reason advocates make this sort of argument is that they want to convince someone not to do something.  If A leads to B and B is seen as unacceptable, then people will be less likely to do A if they are convinced that there is no line between them.  The problem, of course, is that this tactic can backfire.  It might convince people that there is no distinction between A and B when they thought that there was, and thus make B more likely once A happens.

The decision in King, as made brutally clear by Nino, has some serious slippery slope potential. The concern is that seizing DNA under the Maryland law which only allows it for certain serious and violent crimes for example, will lead to a national database of DNA for everyone arrested for anything is the argument against the King decision today, and for the extension of the King decision on the next go-round. And the one after that.

It's valuable to remember, however, when using analogies to make points that there are other games to play that may serve to stop the downward slide.  For example, the slide down the slippery slope ends when there is a conceptual ledge.  If there is a rational basis to distinguish the current rationale from the feared extension, then it's not as terrible a decision as some contend.

And that's why King is awful.

As Scalia properly notes, DNA is collected from people convicted of crimes regardless of this decision, so they are by definition removed from the people affected by it. That leaves only the people who are arrested but not ultimately convicted as the people in play.  The decision is otherwise meaningless.

Given this universe, and the fact that defendants are presumed innocent until convicted, there can be no question as a matter of law that buccal swabs of DNA are being seized from innocent people.  The argument in King is that these are defendants charged with serious offenses.  The purpose of this detail is to distinguish the swabees from people given traffic tickets, from whom DNA is not collected under this law.  This makes Justices Kennedy and Breyer feel better. The other justices in the majority couldn't care less, but that's irrelevant.

The problem with this rationale is that the defendants from whom DNA is taken, being innocent, are similarly situated as anyone else, innocent of everything.  They are innocent of traffic infractions and murder, all at the same time. So what if they're charged with serious offenses? An innocent person charged with murder is still innocent, and indistinguishable from an innocent person charged with any other crime. Or even the innocent person not charged with a crime, for that matter. 

Returning to Magliocci's warning, that the argument now used against the majority in King is the same argument that will prevail in causing the very slide we seek to avoid, is there a conceptual ledge to prevent it?

The answer seems to be no, there isn't, and while the warning is appreciated, it's not as if nobody would have noticed that there is no basis to argue why the slide down the slope can't be stopped. 

The 5-4 majority in King was predicated on Justice Breyer's preference for a balancing approach to the Fourth Amendment, weighing the imposition of the intrusion on the body against the benefits to the government of whatever it seizes. The benefits to the government of having everybody's DNA for the purpose of identifying who committed a crime are sufficiently obvious to require no in-depth discussion. 

The physical intrusiveness of a cheek swab to collect the DNA isn't such a big deal either, as far as these things go. It's hardly as bad as a blood draw to collect evidence to proven intoxication, or worse yet, the insertion of a catheter.  So if balancing suits your fancy, this shouldn't displease you all that much.

On the other hand, the ramifications for personal privacy are astounding, and still only in its infancy. DNA tells a great deal about a human being, and no doubt will grow more revealing as science progresses. With a well-stocked databank, the implications are off the charts.

But if it's constitutional to collect DNA from innocent people based on mere accusation, and the only impediment is the required opening of the mouth (whether or not our proud founders would have enjoyed a royal swab in there) to take a swab, then the only remaining question is how long before the government can rent-a-scientist to find the part of our DNA that reveals our propensity to behave in a way that displeases it. 

You see, the slippery slope in this instance goes down a very long way, and now that we're on it, there is no conceptual place to stop.

Update: A few people have sent me emails asking about the internal statutory protections, mentioned by Kennedy, such as disposal of DNA samples should a person be acquitted, or uses to which DNA may be put with sanctions for violating those uses.  Here's the problem. The holding is not contingent on these statutory limitations, but they are dicta mentioned only to bolster the holding. The Maryland lege enacted them, and the Maryland lege can modify or eliminate them.

Then what?  The constitutionality remains intact and the limits are gone. Or the next state that enacts a similar law chooses not to enact similar limits. Or the limits are ignored and nobody cares. While they may make the holding more palatable for the moment, they do nothing to stop the slide. And given how beneficial DNA samples are to the government, it's impossible to conceive of law enforcement not using what they have and wanting more, and that the same arguments in favor of them now will continue to militate for greater collection in the future.

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