Every time judges instruct juries in criminal cases, they caution jurors to be wary that simply because a person has been arrested does not mean that the person committed the crime, that the fact that the person stands before them accused of malfeasance is not evidence.
It is the bedrock of our criminal justice system, and our nation.
Certainly, there are some who believe criminal defendants have too much protection, too many rights. But those protections, those rights, belong to all of us, even those who run afoul of the law.
So it's troubling that the U.S. Supreme Court would rule that a basic right isn't really a basic right, that those accused of some crimes have fewer rights than other, less serious offenders, or even the general law-abiding public.
Last week, the high court ruled, by a 5-4 vote, that police can take a DNA swab from anyone they arrest for a serious crime — without having to ask a judge's permission to obtain a search warrant.
Justice Anthony Kennedy, writing for the majority, reasoned that taking and filing a person's DNA is no different than taking fingerprints or a mug shot and that obtaining a person's genetic code is reasonable under the constitutional prohibition of unreasonable searches and seizures.
“The use of DNA is no different than matching an arrestee's face to a wanted poster or a previously unidentified suspect, or matching tattoos to known gang symbols to reveal a criminal affiliation, or matching an arrestee's fingerprints to those recovered from a crime scene,' Kennedy wrote.
With all due respect to Kennedy, it is different. DNA contains the blueprint for who you are. It could contain information that is irrelevant to any criminal proceeding. Handing the government the ability to obtain it, without the due process of law, without probable cause, without a review from a judge, is intrusive and, simply put, unreasonable. In fact, all nine justices concurred that obtaining a suspect's DNA constitutes a search. They merely disagreed on whether it was reasonable or not, the standard set by the Fourth Amendment.
Surprisingly, among the four justices who believe DNA collection was an unreasonable search, was the court's most consistent conservative member, Antonin Scalia. In the past, Scalia has sided with other conservative members of the court who have given the government more power.
This case, though, appears to have been the line in the sand for him.
“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, and for whatever reason,' Scalia wrote in the dissenting opinion.
When you look at it, Scalia's stance on this case reflects true conservative belief, that the government must adhere to the letter and spirit of the Constitution. But too often vociferous law-and-order adherents believe that abridging basic rights for the sake of fighting crime is a conservative value.
It is not.
Granting the government more power, especially when it conflicts with basic rights, is not a conservative or liberal idea. It's just a terrible idea. It does not protect criminals. If anything, it puts the rest of us at risk of losing our basic rights.
Scalia put it quite simply — and eloquently — in his dissenting opinion.
“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.'
Police in 28 states collect DNA from criminal suspects without a warrant, as does the federal government. Pennsylvania is not one of the states that does so, allowing the collection of DNA samples only upon conviction or via a search warrant. A bill, being pushed in part by state Senate Majority Leader Dominic Pileggi, R-9 of Chester, is pending in the state Legislature that would change that.
The argument would be not only that other states do it, but that it also now carries the imprimatur of the U.S. Supreme Court.
In this case, you can argue that doesn't make it right.