In Maryland v. King, the Supreme Court allowed states to collect DNA samples from anyone arrested for “serious felonies.” Writing in dissent, Justice Scalia scoffed at the limitation that the majority claimed to put on this principle:
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.
In a forthcoming article in Recent Advances in DNA & Gene Sequences, Professor Elizabeth Joh of U.C. Davis picks up where Justice Scalia left off and discusses the possibility of extending the King doctrine to all arrestees, whatever the offense may be. The article is mostly a cautionary tale; a warning to policymakers not to eagerly adopt this seemingly inevitable next step. She cites four concerns about such an extension: (1) it has technically not been authorized by the King decision; (2) it would give police officers too much discretion in deciding who became part of the growing DNA database; (3) expungement is not a practical option for those whose DNA is collected; and (4) the crime-control benefits of such an extension would be less than most people believe.
Of all of these concerns, only the second one actually discusses the negative consequences of DNA testing for misdemeanor arrestees. And Professor Joh makes a compelling argument here, pointing out that police discretion to arrest for misdemeanors is far greater than their discretion to arrest for felonies. Because of a variety of factors, the police already exercise this discretion to arrest in a way that results in the detention of a disproportionately large number of racial minorities and poor people. As Professor Joh points out:
What all of this means is that one’s chances of being included in DNA database based on an arrest for a minor crime may depend on seemingly arbitrary factors like one’s neighborhood, race, attitude, or just plain bad luck. And given the existing disproportionate representation of minorities in the criminal justice system, that discretion would likely translate into databases that are even more racially imbalanced than they are now.
The title of Professor Joh’s article asks an important question: Should Arrestee DNA Databases Extend to Misdemeanors? A policymaker trying to reach an informed and thoughtful answer to that question would have to take into consideration all of the potential crime-control benefits of such a step (something which Professor Joh’s article briefly discusses but does not delve into detail about). But the policymaker would also have to come to terms with the undeniable truth that Professor Joh presents in this concise paper–that such a step would exacerbate the already troubling disparities in our criminal justice system.