Maryland v. King No. 3: Bertillonage as Precedent

There are lots of criticisms that one can make of the majority opinion in Maryland v. King -- and even more that apply to the dissent -- but, contrary to one commentator, I do not think that the Court's reference to the use of anthropometrics as employed in the late 1800s and early 1900s for authenticating the identities of prisoners is particularly problematic. The Court wrote:

Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthro­pologist Alphonse Bertillon. Bertillon identification con­sisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” Defense of the Bertillon System, N.Y. Times, Jan. 20, 1896, p. 3. “[W]hen a prisoner was brought in, his photograph was taken according to the Bertillon system, and his body measurements were then made. The measurements were made . . . and noted down on the back of a card or a blotter, and the photograph of the prisoner was expected to be placed on the card. This card, therefore, furnished both the likeness and description of the prisoner, and was placed in the rogues’ gallery, and copies were sent to various cities where similar records were kept.” People ex rel. Jones v. Diehl, 53 App. Div. 645, 646, 65 N. Y. S. 801, 802 (1900). As in the present case, the point of taking this information about each ar­restee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for . . . future supervision after discharge.” Hodgeman v. Olsen, 86 Wash. 615, 619, 150 P. 1122, 1124 (1915); see also McGovern v. Van Riper, 137 N. J. Eq. 24, 33–34, 43 A. 2d 514, 519 (Ch. 1945) (“[C]riminal identification is said to have two main purposes: (1) The identification of the accused as the person who committed the crime for which he is being held; and, (2) the identification of the accused as the same person who has been previously charged with, or convicted of, other offenses against the criminal law”).

After Jake Sherkow, a Fellow at Stanford's Center for the Law and Biosciences, suggested that this recounting of legal history was an "appeal to the truly ugly portion of nineteenth century criminology" and that Bertillonage was "proto-eugenics," he and I corresponded about the value of these measurements for biometric authentication and their putative connection to the eugenics movement. We pretty much converged in our understanding of these matters (see http://blogs.law.stanford.edu/lawandbiosciences/2013/06/11/maryland-v-king-corrections-department-david-kaye-on-bertillonage/), but I think we still disagree on the wisdom of the Court's including a reference to the legal history in its opinion.

I would agree that Justice Kennedy could have made the same point solely with early opinions on the propriety of fingerprinting. However, anthropometrics and photography contributed mightily to that line of cases. The justice began his discussion of fingerprinting with United States v. Kelly, 55 F. 2d 67 (2d Cir. 1932), presenting it as "the seminal case." In fact, it was a part of a long series of cases. E.g., Downs v. Swann, 73 A. 653 (Md. 1909); David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095, 1098 n.9 (2013); http://for-sci-law-now.blogspot.com/2012/12/the-judicial-reception-of-acquiring.html. But see with Wayne A. Logan, Policing Identity, 92 B.U. L. Rev. 1561, 1580 (2012) (arguing that Kelly represented a major shift in the caselaw)..

Ignoring judicial approval of anthropometrics and photography therefore would have been ahistorical, especially considering that cases such as Downs saw fingerprints as part of a combined system -- in modern jargon, a multibiometric authentication system. And that is what DNA and fingerprints are today.

Of course, it is not all they are. Both fingerprints and DNA also serve the police intelligence function of associating individuals to crime scenes. The dissenting four justices believe that it is unconstitutional to take arrestee DNA to use it in this manner. I shall consider their reasoning and rhetoric later.