I’ve only read some of the coverage, including some very helpful posts over at Bench Memos, of the Court’s Osbourne decision. I’m actually torn on this one, and I’m more sympathetic to the dissenting justices than I usually am. But I’m also a believer that that lots of very bad things can be constitutional just as a lot of very good things can be unconstitutional.

I’ll read up more before I make up my mind about the constitutional aspects of all this. But, as a matter of public policy, I have long believed that the state has a real interest in providing DNA testing, particularly in capital cases, whenever it might exonerate the convicted. Ideally, such tests would always be conducted as part of a fair trial. And, while I’m not a big fan of defendents refraining to employ DNA testing for “tactical” reasons (as seems to be the case with Osbourne), I’d be reluctant to say that in every trial the defendent has to submit to DNA testing because letting defendents conduct their own defense is a cornerstone of our legal system.

Nonetheless, nobody on the left or the right should be comfortable with the idea of innocent people being in jail, never mind being put to death. If DNA testing can clearly and definitively confirm the guilt or reveal the innocence of convicts, I think governments should err on the side of providing that testing. That doesn’t mean you should have a constitutional right to it necessarily, but I think lawmakers would be well-advised to go the extra mile to provide it whenever there’s a close call.