Yesterday, Justice Stevens addressed the American Constitution Society. He took the unusual step of stating how he would have voted on the constitutionality of collecting DNA from arrestees and using it, not necessarily as proof of the individual’s true identity, but as an investigative tool to link the arrestee to unrelated crimes. This is, of course, the use that split the Court in this month’s decision in Maryland v. King.

Below I offer a condensed and annotated version of Justice Stevens’ analysis. Although I do not agree with every aspect of his discussion, I think he got it basically right, and I take issue with the surprising hyperbole that already has appeared in The Atlantic. … cont’d on the FSSL Blog