Dexter, DNA, and Maryland v. King

Dexter is a blood analyst for the Miami Metro Police Department by day, and, unbeknownst to nearly everyone, is also a serial killer by night.  With that type of work, it’s no wonder that television’s most beloved murderer, and his workaday colleagues at Miami Metro, are buried in legal issues.  Take, for example, the time that both Miami Metro and Dexter were tracking the Trinity Killer—the mysterious killer that always took three victims in each of his murderous cycles.  Miami Metro had a great idea: employ the “DNA sweep.”  The cops simply set up “DNA roadblocks” on the highway, stopped all of the cars, and forced everyone to submit their DNA to be tested against the DNA left behind at one of Trinity’s crime scenes.  (In the end, that’s not what caught Trinity—Dexter got to him first and delivered his own brand of serial-killing justice.)  I remember laughing aloud when seeing this Miami Metro police practice.  Even in today’s over-the-top, short-sighted, hysterically tough-on-crime society, these DNA sweeps would never be allowed—or so I thought.  And then our Supreme Court decided Maryland v. King.

In Maryland v. King, the real-life Maryland cops did something very similar to what the fictional Miami Metro cops did in Dexter.  The short version: Maryland cops take DNA from anyone arrested, but not yet convicted, of certain crimes.  Then they match that DNA against DNA from unsolved crimes.  The Supreme Court admitted that, even though we have a Fourth Amendment right to be secure in our persons and free from government intrusion, the Maryland cops were conducting warrant-less, suspicion-less searches of our bodies, without our consent, to collect and keep our DNA in government databases.  And the Court said that this is perfectly fine and doesn't violate our rights.      

Maryland v. King, I hope, is the case that wakes us up and forces the citizenry to say that the government has finally gone too far.  Normally, we Americans have a high tolerance for government intrusion into privacy—that is, until it could happen to us personally.  And now, the only difference between television and reality is that the Miami Metro cops were taking DNA of all highway travelers, and the Maryland cops were taking DNA of arrestees.  But does that make you feel safer from government intrusion?  It shouldn’t.  Do you think this type of body search and DNA collection can never happen to you?  Think again.

Sure, Maryland was only taking DNA from people arrested for “serious crimes.”  But as I explained in Chapter 3 of this book, and in a recent interview with Laws.com, nearly every type of conduct qualifies as a serious crime.  People are arrested, charged, and sometimes even convicted of felony crimes for behavior that most people would be shocked to learn is criminal.  And don’t think for a minute that a “serious crime,” or even a “felony,” requires that a victim be injured in some way, or that someone’s property be stolen or damaged.  It doesn’t.  And, because our criminal codes are so expansive, nearly all of us are felons, or at least criminals—it’s just that many of us don’t yet know it because we haven’t yet been caught. 

Further, there doesn’t have to be actual evidence to arrest someone for a “serious crime.”  Instead, the police can arrest a person based on the incredibly low standard of probable cause: the arrestee’s guilt must, in the police officer’s mind, be something slightly more than a mere possibility.  That means you’d better not be the wrong skin color, height, or weight, or be wearing the wrong type of clothes, or be in the wrong place at the wrong time, because any of those things could give the police probable cause to arrest you.  Further, in some situations, the police are subjected to mandatory arrests laws, which are just what they sound like: the police must arrest someone once they have been called.  In short, the ease with which the police can arrest a person is best captured by the dissent in Maryland v. King: “Nearly one-third of Americans will be arrested for some offense by age 23.” 

The dissent in Maryland v. King does an excellent job of shredding the majority’s decision, point by point.  It also explained why the majority’s decision should be incredibly scary to all Americans: “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school.”

And what about taking DNA samples from travelers on the highway in order to search for the Trinity Killer?  It turns out that Miami Metro’s DNA sweeps on Dexter are closer to becoming a reality than I could have ever imagined.