In a 5/4 decision on Monday, the Supreme Court ruled that law enforcement officers can take one’s DNA if one is arrested for a serious offense, a decision that elicited howls of protest from certain quarters. However, the primary howl of dissent came, not from the liberal justices or advocacy organizations, but from Justice Antonin Scalia.
(For the record, all three liberal-leaning female justices voted in the minority block. Breyer voted with the majority.)
And, be advised, Scalia didn’t just write a dissent, he insisted on reading it aloud—with much drama, lots of well crafted and colorful verbiage, and general passion.
Here’s a clip from Joan Biskupic’s story for Reuters on Scalia’s dissent :
Writing for the minority, Scalia was joined by three liberal justices. But his 11-minute oral statement – a departure from the usual practice in which only the majority opinion is read aloud – was classic Scalia. It relied on his “originalist” interpretation of the U.S. Constitution and employed forceful rhetoric as clever as it was heated. He declared that the majority’s rationale “taxes the credulity of the credulous.” An adroit writer, he sprinkled in words from decidedly non-legal contexts, such as “hash” and “genuflecting” and mixed in references to American revolutionary Patrick Henry and the biblical Leviathan.
The latter came at a moment of high drama in the white marble courtroom when Scalia concluded: “It may be wise, as the court obviously believes, to make the Leviathan all-seeing, so that he may protect us all the better. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection. I dissent.”
Only a few times each term does a justice read a dissenting opinion aloud. It typically happens in a close, hard-fought case, when a dissenter is especially angry and wants to call attention to a decision he or she believes especially unwise…..
And here’s a clip from Adam Liptak’s more general story on the decision for the NY Times:
The police may take DNA samples from people arrested in connection with serious crimes, the Supreme Court ruled on Monday in a 5-to-4 decision.
The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.
“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.
But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute….
Scalia’s dead right, of course. And, although WLA is agnostic on the issue in general, we too are bugged by the legal underpinnings of this ruling. Given how long it typically takes to get DNA results back, the majority’s rationale is a major stretch for the average felony arrest. And we don’t like it that the majority used this squishy and not-terribly supportable line of reasoning as a way to get around any Fourth Amendment problems.
The good news is that the ruling for swabbing will help solve more crimes. And, with luck, fewer innocent people will be convicted. But, it sets a weird precedent.
So, yes, go Antonin! Thank you for not going into your minority status quietly.
PS: For this one brief and shining moment, the ACLU agrees with Scalia, and name checks him in their post ruling statement.
NEW REPORT SHOWS CRIME AND VIOLENCE IN SCHOOLS ARE DOWN SINCE 1992, BUT BULLYING HAS REMAINED DISHEARTENINGLY STEADY
Last Friday, the Bureau of Justice Statistics released a new report that looks at violence and safety in schools and the numbers tell a complicated story.
For example, victimization of students at school by theft and violent crime dropped precipitously from 1993 to 2011 with a high in ’93 of around 165 students per thousand, to only around 35 students per 1000 in 2010.
When it comes to homicides in schools, the numbers were high in 1992, and then again in the 2006-07 school year, but steadily declined after that.
The number of kids who’d brought a weapon to school in the last 30 days has gone down quite a bit since the early 1990s. But still, 5 percent of students have brought a weapon to campus at least one day in the last 30 days (down from more than 12 percent in 1993.)
Yet, while violence and crime in schools dropped, bullying did not.
In 2011, 28 percent of kids between the ages of 12 to 18 reported being bullied at school, with the numbers slightly higher for girls at 31.4 percent, than for boys, at 24.5 percent.
There has been, as one might guess, much more in the way of safety measures put into place since the early 1990s (security cameras, restricted access to campus during school hours, etc.). And yet, while the percentage of schools with security guards, or school police, has remained about the same since 2005 (after rising a bit in 2007) the number of armed personnel on campus has dropped.
Take a look at the numbers and charts for yourself.
NEBRASKA TAKES BIG STEP TOWARD JUVENILE JUSTICE REFORM
Although, nationally, juvenile incarceration is dropping, Nebraska had an 8 percent rise between 1997 and 2010, according to the Annie E. Casey Foundation analysis released this year.
But now the state has taken a significant step in the direction of turning that trend around, according to a story by James Swift of the Juvenile Justice Exchange.
Nebraska’s juvenile justice system will have a new focus on rehabilitation thanks to a bill signed into law Wednesday by Gov. Dave Heineman.
Legislative Bill 561 (LB561), introduced by state Sen. Brad Ashford (I-Omaha), will allocate $14.5 million towards several new services, as well as a grant program to aid counties in treating juvenile offenders.
The bill decreases the state’s dependency on juvenile detention programming, placing a greater emphasis on youth rehabilitation. The new measure also transfers juvenile offender supervision over to Nebraska’s Office of Probation Administration, which is subordinate to the state’s Supreme Court. Prior to the legislation taking effect, Nebraska’s juvenile populations were instead overseen by the state’s Department of Health and Human Services.