By Kellen Russoniello, student, George Washington University Law Center and NORML legal intern
[Update: A federal judge ruled on April 26, 2012 that Florida's drug testing law for unemployment benefits is unconstitutional.]
As several states are considering or implementing policies that require recipients of government benefits such as welfare to undergo drug tests, the federal government has shown approval for the same flawed rationale. Last week, President Obama signed into law an agreement reached by Congress which maintains the payroll tax cut and extends unemployment benefits, but also allows states to drug test people who seek unemployment benefits if they were fired from their previous job for using drugs or if they are seeking a job that would ordinarily require drug tests.
The Middle Class Tax Relief and Job Creation Act of 2012, H.R. 3630, was signed on February 22, 2012. Section 2105 amends the Social Security Act by allowing states to drug test applicants for unemployment benefits and deny those benefits in the case of a positive result.
What percentage of those applying would be forced to pee in a cup? Although the numbers are unclear, Republicans had cited a study claiming 84% of employers required new hires to pass a drug test. Initially, Republicans had pushed for drug testing all applicants, but this was opposed by Democrats. In order to extend the payroll tax cut and unemployment, however, Democrats caved on the issue of drug testing.
A columnist for Time pointed out several flaws in this policy. First, a single failure of a drug test does not treat addiction or even determine if treatment is necessary. In fact, because marijuana can stay in the body’s system for extended periods of time, drug tests are likely to disqualify cannabis users even though it is one of the least addictive drugs. Second, people may shift their use to other drugs, such as K2 or Spice, which are more difficult to detect in a urine screen but may be more detrimental to the person’s health. Third, creating obstacles for the unemployed to get back on their feet may actually worsen drug use, as it fosters anger and resentment.
Further arguments against this policy include that although the government estimates drug use among unemployed to be about twice that of the employed population, the rates of drug use among those applying for welfare benefits were found to be equal to the general population in Michigan when it tried to implement a drug test law, and much less than the general population in Florida. Not to mention, this type of policy is most likely unconstitutional.
Hopefully states will come to their senses and not opt to implement this policy. If your state is one of the 23 states considering mandatory drug testing for welfare benefits, contact your legislators and tell them to oppose these unsound and unconstitutional policies.
Florida’s Drug-Testing of the Poor Proves a Failure, but Some States Still Want to Follow their ExampleFebruary 18, 2012
By Kellen Russoniello, George Washington University Law student and NORML Legal Intern
The recent push for implementing drug testing for potential welfare recipients across several states has revealed at least two things: 1. The policy is not economically sound; and 2. It really brings out the hypocrisy in some elected officials.
Last summer, Florida implemented a law requiring all welfare applicants to submit to a mandatory drug test before receiving any benefits (Applicants had to pay the $30 for the test themselves, only to be reimbursed later if they passed. For more information, see this NORML blog post.). Not surprisingly, the program was brought to a quick halt. Back in October of 2011, a federal judge ruled that the Florida drug testing law was unconstitutional.
Further, in the few months that the program was up and running, it was shown that only 2% of welfare applicants tested positive for drugs. About 9% of the general population reports using drugs in the past month. So much for Governor Rick Scott’s theory that the poor use drugs more often than the rest of the populace.
Even more striking is the amount of money that Florida lost from this poorly designed policy. The Tampa Bay Online estimated that $3,400 to $8,200 in savings would be recognized every month from drug testing welfare applicants. As it turns out, the program is estimated to have cost Florida over $200,000. From any perspective, this policy can be regarded as a failure.
Despite the lessons that can be learned from Florida’s debacle, several states are still considering implementing programs to subject their impoverished population to drug tests. The Huffington Post reported that twelve states attempted passing legislation in 2011 that would require drug tests for welfare applicants. Florida, Missouri, and Arizona were the only three that succeeded. However, Pennsylvania has just begun a pilot program in Schuylkill County that subjects certain applicants to drug tests. By tailoring their laws to apply only to applicants that have aroused reasonable suspicion, these states are hoping to avoid constitutional problems like those that ultimately invalidated the Florida law and a similar Michigan law in 2000 (which was affirmed in 2003). Several states have also tried to drug test those who seek unemployment benefits, state employees, and private sector employees, including the passage of an Indiana law that requires drug testing for those in a state job-training program.
When pressed, legislators that support this policy try to justify their position by claiming that the taxpayers should not subsidize drug addiction. But taxpayers pay for much more than just welfare. Some of their money goes towards paying their legislators’ salaries. Wouldn’t this same rationale justify drug testing legislators? This has been the tactic of many Democratic state legislators to thwart Republican efforts to test welfare applicants. In fact, a Republican State representative in the Indiana General Assembly recently pulled a bill after another representative amended it to include drug testing for legislators. The bill was reintroduced and passed by the Indiana General Assembly the following week, which included a section requiring legislators to submit to random drug tests. Missouri and Tennessee currently have bills that would require legislators to submit to drug tests. These were introduced in reaction to a slew of bills aimed at requiring drug tests on different areas of the population. It seems that the legislators who want to drug test the poor aren’t really convinced of the merits of the program when applied to themselves.
Hopefully, state politicians will come to their senses as knowledge about the failure of Florida’s policy becomes more well-known. But given this country’s track record on drug policy, I wouldn’t recommend holding your breath.
To see a hilarious summary of Florida’s drug-test-the-poor policy, watch this Daily Show clip, which includes Florida State Representative Scott Plakon’s and Governor Rick Scott’s reactions to being asked to take a drug test.
By Kellen Russoniello, George Washington Law School student, NORML legal intern
Update: June 19, 2011…Florida Governor Scott Backs Down, Suspends His Executive Order For A Massive State Drug Testing Scheme
On May 31, 2011, unpopular Florida Governor Rick Scott signed a bill that mandates all those seeking public assistance through the Temporary Assistance for Needy Families (commonly known as welfare) to pass a drug screen. Those that fail the test will not be eligible for benefits for one year. The law will become effective on July 1.
Furthermore, the law requires those seeking assistance to pay for the cost of the screening. The expense can be recovered if the applicant qualifies for benefits. If you fail the test though, tough luck: your money belongs to the state. Those who are denied may designate another person to receive the benefits on behalf of their children, but they must also pass a drug test.
In justifying his signature, Governor Scott stated that it is “unfair for Florida taxpayers to subsidize drug addiction.” So instead of supporting effective treatment and prevention, the law will implement a costly and ineffective means to try and deter drug use. Not to mention the law is most likely completely unconstitutional.
A Michigan law similar to this one was struck down in 2000 and affirmed in 2003 by the 6th Circuit. Michigan lawmakers had enacted a law allowing for suspicion-less searches of welfare recipients. A class action lawsuit was brought by applicants alleging that these drug tests violated the Fourth Amendment. The applicants won.
Although the Supreme Court has recognized certain situations in which a suspicion-less drug test is allowed (including testing railroad employees, customs agents whose line of work causes them to be directly involved with drug interdiction, and high school athletes and other students involved in extracurricular activities), the testing under the Florida law does not seem to further a special need of the government which outweighs the privacy interest of the individual. In order to demonstrate this special need, the state generally must show that public safety is in jeopardy. The Michigan government made the argument that drug use put children at the risk of abuse and neglect, but this argument was rejected by the district court. (It could be argued that the denial of benefits is more detrimental to public safety than not testing potential recipients). Testing welfare recipients for drug metabolites does nothing to further public safety, and therefore the government will most likely fail to meet the strict test set forth by the Supreme Court.
Those convicted of drug trafficking charges are already ineligible to receive welfare. Even if you can justify this by saying that they cause harm to communities, this new law places the focus on users. Legal challenges are expected and should come down in favor of the applicants, although with the Supreme Court’s recent Fourth Amendment jurisprudence, if the case were to rise that high there may be cause for concern.
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Editor’s note: 1) Isn’t it interesting how elected politicians like Rick Scott (often with no legislative hearings at all) are so quick to want to control the living habits of poor citizens who receive state funding, but they never insist on drug testing requirements to issue state funding and grants to rich land developers, corporations, business executives, professional sports team owners or religious leaders–just the poor?
2) Looks like Governor Scott may have more than ideological reasons to push the state of Florida into using taxpayers’ money on massive drug testing programs for welfare recipients and state employees…as reported in the Palm Beach Post in March:
“Floridians deserve to know that those in public service, whose salaries are paid with taxpayer dollars, are part of a drug-free workplace,” Scott said in a statement. “Just as it is appropriate to screen those seeking taxpayer assistance, it is also appropriate to screen government employees.”
Until last week, Scott’s communications office in Tallahassee had ignored repeated requests for comment on the potential for a conflict of interest. On Friday, as national media began to call as well, the office issued this response:
Any perception that the governor’s business interests pose a conflict of interest with his health policies are “baseless and incorrect,” said Scott’s deputy communications director, Brian Hughes.
Privately, one Scott official acknowledged that every time the governor discusses health policy, his urgent care business would be “the elephant in the room.”
Shortly before he was inaugurated, Scott’s lawyers met with attorneys at the Florida Commission on Ethics. Subsequently, they moved his Solantic holdings into a revocable trust in his wife’s name, making her the controlling investor in the privately held company. No public records were created from the ethics meeting.
During the election campaign, he had estimated the worth of his Solantic holdings at $62 million. Jacksonville-based Solantic has 32 clinics statewide, including two in Palm Beach County, and plans rapid growth and an eventual initial public offering, according to company documents.
Suffolk University Law Professor Marc Rodwin, author of several books on conflicts of interest in medicine, said the movement of Scott’s ownership to his wife’s trust was insufficient to eliminate the ethical issues.
“He owned the company and transferred it into his wife’s name,” Rodwin said. “It’s a conflict of interest.”
[The following blog post was submitted to the NORML Women's Alliance by Anna Diaz. NORML's commentary appears in italics below.]
Urinalysis, the most common form of non-impairment drug testing, unfairly targets marijuana consumers because it screens for the presence of inert byproducts that may be detectable for days, weeks, or even months in former users. This is a discriminatory policy that sanctions individuals who may have consumed cannabis at some previous, unspecified point in time, while most other forms of illicit substance use to go undetected. Further, most marijuana consumers are responsible, hard-working Americans. NORML believes that it is arbitrary and counterproductive to single these people out for punishment simply because they fail a urine screen.
By: Anna Diaz
NORML Women’s Alliance Steering Committee
Oregon NORML, Co-Founder
I am a Latina, a forty-year cannabis consumer, a medical cannabis patient and a single mother who has had to use public assistance more than once. In 2011, Oregon and three other states have introduced bills that would require drug testing for people receiving public assistance. I am writing to present my unique perspective on this issue, and why individuals should oppose any type of legislation that would require drug testing for all applicants looking to receive state services such as food stamps or unemployment benefits.
Many groups oppose this type of legislation including the ACLU, various associations of health professionals and, not surprisingly, organizations that assist women and children in need. One in five Oregonians receive state services. Currently, 79% of Supplemental Nutrition Assistance Program (SNAP) benefits – formerly food stamps — in Oregon are awarded to households with minor children. 65% of the children receiving those benefits live in single parent households. Most of these single parents are women.
The ACLU position states, “Drug testing welfare recipients as a condition of eligibility is a policy that is scientifically, fiscally, and constitutionally unsound.”
Michigan is the only state to attempt to impose drug testing of welfare recipients – a policy that was struck down as unconstitutional in 2003. The ACLU challenged the mandatory drug-testing program as unconstitutional, arguing that drug testing of welfare recipients violates the Fourth Amendment’s protection against unreasonable searches. The case, Marchwinski v. Howard, concluded when the U.S. Court of Appeals for the Sixth Circuit upheld a lower court’s decision striking down the policy as unconstitutional.
Further, studies show that welfare recipients are no more likely to use drugs than the rest of the population. 70% of illicit drug users are employed. The ACLU also cites research showing that drug testing is an expensive and ineffective way to uncover drug abuse.
This is an expense our state cannot afford under any circumstances. The average cost for drug testing in Oregon is $44.00 a person. According to the Oregon Department of Human Services, there were 361,300 households (682,000 people) receiving SNAP benefits in February 2010. The caseload is expected to increase until it peaks at 398,000 cases (760,000 people) in April 2011. That is a 10 percent increase from February 2010. Even if only one test were administered per household, the cost of drug testing would be roughly $17 million dollars.
While there are several reasons to oppose this type of legislation in all four states, there is one reason that is very unique to Oregon. Oregon is the only state that has a medical marijuana program. The problem is that the Oregon Medical Marijuana Act does not protect patients who also receive public assistance. Should this bill pass, many of us would be ineligible for services just because we are legally using our medicine.
The ACLU is right. Drug testing welfare recipients as a condition of eligibility is unsound on all levels for everyone, including taxpayers. It discriminates against medical cannabis patients, is a waste of money, and will hurt single parent households, which in turn, hurts our children.
Please send a message to the Oregon Legislature and ask them to oppose any type of drug testing legislation. It only takes a few minutes, and you can do it right now. Here is an example of what you can say to get you started:
“Please oppose any legislation that incorporates drug testing as a part of the law. Our state cannot afford the expense, and these bills discriminate against disabled medical marijuana patients.”