Genetics at the Supreme Court 2: the "genetic panopticon"

Xavier Symons
15 Jun 2013
Reproduced with Permission

Earlier this month the US Supreme Court ruled in a 5-4 decision that DNA swabbing of people who have been arrested is constitutional. In Maryland v. King the court supported Maryland police, arguing that forced DNA swabbing was similar to procedures like fingerprinting and photographing, both of which are permissible under the Fourth Amendment. The respondent, Alonzo King, claimed that swabbing was prohibited by the the Fourth Amendment, which states that 'unreasonable searches and seizures' of unconvicted individuals are illegal.

In 2009 Alonzo King was arrested in Wicomico Country, Maryland, on assault charges. Police forcibly obtained a DNA swab, suspecting that he had previously offended, and discovered that his DNA matched evidence from an unsolved 2003 rape case. He was subsequently convicted of that crime.

In all US jurisdictions authorities are allowed to take swabs of someone convicted of a serious crime. While 29 states, including Illinois, and the federal government go further and take DNA samples from at least some people put under arrest, the constitutionality of testing arrestees had remained in doubt.

Civil liberties advocates believe that the government will have unjustifiable access to personal information. In the words of dissenting Judge Antonin Scalia: "Make no mistake about it: Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, for whatever reason…

"Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."