Justice Scalia and the Genetic Panopticon

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I haven't always been that kind to Justice Scalia (or to Justice Scalia's hats), but I do think he's a very good writer, and so I'm glad to be able to quote him saying something I agree with.

If you have forgotten what "panopticon" means, that was Jeremy Bentham's idea for a prison that would keep inmates under control at little cost to the State. It would be a circular building with the watchmen in a "hub" at the center so they could see all the inmates at once, but—just as importantly—the inmates would not be able to see them. As he wrote in the 1790s:

It is obvious that … the more constantly the persons to be inspected are under the eyes of the persons who should inspect them, the more perfectly will the purpose X of the establishment have been attained. Ideal perfection … would require that each person should actually be in that predicament, during every instant of time. This being impossible, the next thing to be wished for is, that, at every instant, seeing reason to believe as much, and not being able to satisfy himself to the contrary, he should conceive himself to be so…. The essence of it consists, then, in the centrality of the inspector's situation, combined with the well-known and most effectual contrivances for seeing without being seen.

The genius of the idea, in other words, is that it makes attaining the institution's purpose much more efficient because although you can't watch everybody all the time, Panopticon inmates would always have to act as if they were being watched, because they couldn't be sure if they were or not. 

That may sound bad, but Bentham argued that inmates would be better off in a Panopticon because of this idea that they would regulate themselves all the time due to the perpetual fear of being watched. An inmate would not need to be chained, for example, and really wouldn't have much to complain about at all because he would have "perfect liberty within the space allotted to him…."

Even better, the principle could be extended to other areas of society. For example, it'd be great for schools:

All play, all chattering—in short, all distraction of every kind, is effectually banished by the central and covered situation of the master, seconded by partitions or screens between the scholars, as slight as you please.

All non-productive activity would be effectually banished by fear of the invisible watchman. Pupils would otherwise have perfect liberty, though, within the space allotted to them.

No Panopticon was ever built, partly because they really did not have the technology to permit seeing without being seen. Since we do now, you can see where this is going.

Scalia brought up the Panopticon in his dissent from the decision in Maryland v. King, in which the majority held that if officers make an arrest supported by probable cause to suspect a "serious offense," then taking a DNA sample from the suspect doesn't violate the Fourth Amendment. The majority reasoned that the state has a significant interest in positively identifying suspects and the intrusion required, "a gentle rub along the inside of the cheek," is minimal. Basically, the majority held, this is no different than photographing or fingerprinting subjects.

Which is nonsense, because DNA has the potential to reveal far more about a person than his or her identity. According to the majority, though, the particular test at issue can't do that, or at least that is "open to dispute." Plus, it continued, the officers are not using it for that purpose, and there is even a state law saying they can't. "The Court need not speculate about the risks posed" by a system that doesn't have such protections, said the majority. Right, because information, once gathered, is never illegally misused. Hey, Justice Kennedy, how about the risks posed by a system that does have such protections but in which those protections are continually ignored or maybe pushed aside by constant invocations of "national security"? Could you speculate about that?

Justice Scalia, joined by the liberals except for Breyer, who surprisingly voted with the conservative majority, was willing to "speculate" about the risks involved:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one,6 will some day be repudiated. 


Compare, New York v. Belton, 453 U.S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U.S. 332 (2009) (on second thought, no).

He was talking about the "all-seeing" aspect of the Panopticon there, of course, but we should also remember that the "essence" of the idea, according to Bentham, was not just the watching but that the watched population would control itself in the first instance because of the fear of being watched by an invisible keeper. Replace the keeper with a faceless bureaucrat or secretive national-security agency and it doesn't take any speculation to see the same chilling effect at work.

Bentham had an answer, though, for the obvious question of who will "watch the watchmen" in this system of his. The answer is that the keepers who are watching the inmates will be watched by the head keeper in exactly the same way:

Another very important advantage, whatever purposes the plan may be applied to, particularly where it is applied to the severest and most coercive purposes, is, that the under keepers or inspectors, the servants and subordinates of every kind, will be under the same irresistible control with respect to the head keeper or inspector, as the prisoners or other persons to be governed are with respect to them.

And who watches the head keeper?

Still looking for his answer to that.

Bentham quotes are from Jeremy Bentham, The Panopticon Writings (Miran Bozovic, ed.) (London: Verso, 1995) at pp. 29-95 (transcribed and posted at cartome.org); see also Walter Olson, "Big Brother Invades Your Genes," The Daily Beast (June 4, 2013).