THE RISING PRICE OF FUTILITY

I have bad news and really bad news about the war on drugs.

The bad news is that the good guys are still losing.

The really bad news is that continuing this futile battle is about to
get a lot more expensive. And for that you can blame the U.S. Supreme
Court -- or, if you take the long view, the criminal-coddling crowd
that gave us the Bill of Rights.

In a 5-4 decision Thursday, the justices ruled that prosecutors are
forbidden to use crime lab test results against criminal defendants
unless the analysts who produced them are available to testify in
court and face cross-examination by defense attorneys.

The majority said the exclusion of such unaccompanied lab evidence
was mandated by the Sixth Amendment, which gives all defendants the
right to confront witnesses against them.

Four dissenting justices said the majority had put "a crushing
burden" on prosecutors and forecast that "guilty defendants would go
free, on the most technical grounds" as a result. Writing for the
dissenters, Justice Anthony Kennedy called the majority ruling "a
windfall for defendants" that contravened 90 years of legal precedent.

Michigan's Used to It

The decision in Melendez-Diaz v. Massachusetts will have relatively
little impact on prosecutors in Michigan, which is among a minority
of states that already require lab technicians to testify about any
test results they produce.

But it effectively precludes legislation to ease that burden on
Michigan State Police scientists, who are currently logging 15 or
more hours of overtime a week to process an enormous backlog of
forensic evidence.

Tim Baughman, chief of appeals for the Wayne County Prosecutor's
Office, said prosecutors and state lawmakers concerned about six-to
eight-month waits for crime lab results have discussed freeing
technicians to spend less time in court. "That's a solution that no
longer exists after Thursday's ruling," he said.

Prosecutors in the majority of states whose courts historically have
allowed crime lab reports to speak for themselves are more
apoplectic. "It's a train wreck," Scott Beck, the executive director
of the National District Attorneys Association, opined after reading
the majority's decision. "To now require that criminalists in offices
and labs ... where budgets are already being cut back travel to
courtrooms and wait to say that cocaine is cocaine -- we're still
kind of reeling."

The High Cost of Liberty

The most interesting thing about Thursday's decision is that it was
written by Justice Antonin Scalia, seldom an apologist for criminal
defendants and widely regarded as the court's staunchest conservative.

Scalia must have bridled at the conservative dissenters' insinuation
that he was setting drug dealers loose, but he was adamant that the
Constitution entitles defendants to confront human witnesses, not
just mute lab reports.

Enforcing a defendant's right to cross-examine witnesses might be
inconvenient and expensive, Scalia admitted, "but the same can be
said of the right to trial by jury." It was not the justices' place,
he added, to decide when constitutional safeguards were no longer
worth what they cost the government to uphold.

"The sky will not fall after today's decision," Scalia wrote.

He's probably right about that. But the cost of putting those who
manufacture, sell and use illicit drugs rose significantly this week.
And now those of us who pay the freight have even more reason to
wonder if we're getting our money's worth.