New York Times Supreme Court correspondent Adam Liptak recently tweaked the noses of the justices who upheld the constitutionality of routinely taking DNA from individuals arrested of assault, homicide and burglary. See Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.
The Court’s opinion, penned by Justice Kennedy, enumerated the arguable benefits of routine DNA collection before conviction, concluding with with the observation that “[f]inally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.” To support this conclusion, Justice Kennedy added a quotation from the important and gripping book Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. As quoted in the justice’s opinion, Barry Sheck, Peter Neufeld, and Jim Dwyer, wrote that: “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people.”
Mr. Liptak noted that this quotation was not “especially punctilious.” One might think that the problem is that the quotation speaks to preventing erroneous convictions, whereas the sentence it is supposed to support is about “freeing a person wrongfully imprisoned.” (Emphasis added.) But Mr. Liptak’s point, which turns out to be related, is that “[t]hose first three dots covered a lot of ground. They took the place of more than six sentences and suggested a different point than the one the authors were making.”