WASHINGTON — Authors usually like it when the Supreme Court cites their work. But a reference to a book in an opinion last week is drawing mixed reviews.
The case, Maryland v. King, was about whether the authorities may take DNA samples from people arrested in connection with serious crimes. Justice Anthony M. Kennedy, writing for the five-justice majority, drew on a 2000 book by the founders of the Innocence Project and a newspaper columnist to explain why this was a good idea.
“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,” Justice Kennedy wrote. Then he quoted from the book, “Actual Innocence.”
I asked Peter J. Neufeld, one of its authors, how he felt about the honor.
“Not great,” he said.
Part of the problem was what he called an irony.
In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck, represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne.
But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.”
The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.
Nor was Justice Kennedy’s brief quotation from “Actual Innocence” especially punctilious. Here is how the justice rendered it, including his brackets and ellipses: “[P]rompt [DNA] testing ... would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of ... innocent people.”
Those 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. The original passage concerned evidence collected at crime scenes, not from people who might be connected to it.
“What we were saying had nothing to do with post-arrest testing of suspects,” said Jim Dwyer, a co-author of the book who is now a columnist for The New York Times. “We were arguing that all evidence should be tested, whether or not a suspect had been charged.”
Mr. Neufeld agreed. “The ‘prompt testing’ is referring to something completely different than the latter phrase,” he said. “Barry, Jim and I never endorsed arrestee databases.”
The omission of two words with the second set of dots is easier to understand. The authors had written that testing could prevent “the grotesque detention of thousands of innocent people.” Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings. (The Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law in New York, says that more than 300 prisoners have been exonerated using DNA.)
In dissent, Justice Antonin Scalia criticized Justice Kennedy’s assertion that gathering DNA after arrests would help free the innocent.
“By the way, this procedure has nothing to do with exonerating the wrongfully convicted, as the court soothingly promises,” Justice Scalia wrote in a footnote, referring to the collection of DNA from people under arrest.
The F.B.I.’s database “includes DNA from unsolved crimes,” he said. “I know of no indication (and the court cites none) that it also includes DNA from all — or even any — crimes whose perpetrators have already been convicted.”
That is not quite right, Mr. Scheck said. “Scalia’s footnote,” he said, “goes too far.”
He said there had been times when prisoners had been exonerated through the testing of DNA in closed cases.
All 50 states allow DNA to be collected from people convicted of felonies, and there is no question that those samples have solved cases. But the evidence that the testing of mere arrestees helps in the effort is surprisingly thin, said Julie E. Samuels, a senior fellow at the Urban Institute, who helped write a comprehensive study on the question.
Jayann Sepich, who has worked to enact laws allowing DNA testing of arrestees since the murder of her daughter Katie in 2003, said her daughter’s killer would have been identified three years earlier had his DNA been tested when he was arrested. In the meantime, the authorities conducted an expensive investigation.
“A $35 cheek swab would have saved $200,000 in her case,” Ms. Sepich said.
A recent study by Jennifer Doleac, an economist at the University of Virginia, found that DNA testing has systemic consequences, too. “I do find there are big reductions in violent crime as these DNA laws are introduced,” she said of laws allowing testing after conviction.
Professor Doleac’s most intriguing hypothesis was that rational people who know that the police already have their DNA may opt not to commit crimes in the first place. That could justify testing not only people arrested but everyone else, too.
Indeed, said Marc Rotenberg, the president of the Electronic Privacy Information Center, many DNA laws and court decisions upholding them are based on logic that has no obvious stopping point.
“The line has gradually been migrating,” he said, “to the endpoint of everyone.”