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Blacks Targeted in Wasteful War on Marijuana, ACLU Finds

Black Americans are nearly four times more likely to get busted for marijuana possession than white ones, even though both groups smoke pot at roughly comparable rates, the ACLU said in a report released Tuesday. The report, "The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Biased Arrests," is based on the annual FBI Uniform Crime Report and US Census Bureau Data.

Blacks are 3.7 times more likely to get busted for marijuana possession than whites. (aclu.org/marijuana)
The disparity in arrest rates is startlingly consistent, the report found. In more than 96% of the counties covered in the report, blacks were arrested at higher rates than whites. Racial disparities in pot busts came in large counties and small, urban and rural, wealthy and poor, with large black populations and with small ones.

In some counties, the disparity rose to 15 times more likely, and in the Upper Midwest states of Illinois, Iowa, and Minnesota, blacks were eight times more likely to be arrested for pot possession than whites. Nationwide, blacks were 3.73 times more likely to get arrested for marijuana than whites.

And it's getting worse, not better. The report found that even though the racial disparities in marijuana arrests existed 10 years ago, they have increased in 38 states and the District of Columbia.

"The war on marijuana has disproportionately been a war on people of color," said Ezekiel Edwards, director of the ACLU Criminal Law Reform Project and one of the primary authors of the report. "State and local governments have aggressively enforced marijuana laws selectively against black people and communities, needlessly ensnaring hundreds of thousands of people in the criminal justice system at tremendous human and financial cost."

In budgetary terms, that cost to the states was $3.61 billion in 2010 alone, the report found. During the decade the report studied, despite aggressive enforcement and rising marijuana arrest rates, all those arrests failed to stop or even diminish the use of marijuana, and support for its legalization only increased.

"The aggressive policing of marijuana is time-consuming, costly, racially biased, and doesn't work," said Edwards. "These arrests have a significant detrimental impact on people's lives, as well as on the communities in which they live. When people are arrested for possessing even tiny amounts of marijuana, they can be disqualified from public housing or student financial aid, lose or find it more difficult to obtain employment, lose custody of their child, or be deported."

The report recommends legalizing, taxing, and regulating marijuana, which it said would eliminate racially-targeted selective enforcement of marijuana laws, save the billions of dollars spent on enforcing pot prohibition, and raise badly needed revenues by taxation. If legalization is not doable, then decriminalization, and if not decriminalization, then lowest prioritization.

The ACLU also calls in the report for reforms in policing practices, including not only ending racial profiling, but also constitutionally-suspect stop-and-frisk searches, such as those embraced with such gusto by the NYPD in New York City. It also crucially recommends reforming federal law enforcement funding streams, such as the Edward Byrne Justice Assistance Grant Program, that encourage police to make low-level drug busts by using performance measures that reward such arrests at the expense of other measures.

The IRS War on Medical Marijuana Providers [FEATURE]

special to Drug War Chronicle by investigative reporter Clarence Walker, cwalkerinvestigate@gmail.com

Dispensaries providing marijuana to doctor-approved patients operate in a number of states, but they are under assault by the federal government. SWAT-style raids by the DEA and finger-wagging press conferences by grim-faced federal prosecutors may garner greater attention, but the assault on medical marijuana providers extends to other branches of the government as well, and moves by the Internal Revenue Service (IRS) to eliminate dispensaries' ability to take standard business deduction are another very painful arrow in the federal quiver.

The IRS employs Section 280E, a 1982 addition to the tax code that was a response to a drug dealer's successful effort to claim his yacht, weapons purchases, and even illicit bribes as business expenses. Under 280E, individuals involved in the illicit sale of controlled substances -- including marijuana, even medical marijuana in states where it is legal -- cannot claim standard business expenses on their federal taxes.

"The 280E provision which requires certain businesses to pay taxes on their gross income, as opposed to their net income, is aimed at shutting down illicit drug operations, not state-legal medical marijuana dispensaries," said Kris Hermes, spokesman for the medical marijuana defense group Americans for Safe Access." Nonetheless, the Obama Administration is using Section 280E to push these local and state licensed facilities out of business."

The provision can be used to great effect. Oakland's Harborside Health Center was hit with a $2 million IRS assessment in 2011 after the tax agency employed Section 280E against. Harborside is fighting that assessment, even as it continues to try to fend off federal prosecutors' attempts to shut it down by seizing the properties it leases. Similarly, when the feds raided Richard Lee's Oaksterdam University that same year, it wasn't just DEA, but also IRS agents who stormed the premises. Lee said it was because of a 280E-related audit.

The attacks on Harborside and Oaksterdam were part of an IRS campaign of aggressive audits using 280E to deny legitimate business expenses, such as rent, payroll, and all other necessary business expenses. These denials result in astronomical back tax bills for the affected dispensaries, threatening their viability -- and patients' access to their medicine.

"Should the IRS campaign be successful; it will throw millions of patients back in to the hands of street dealers; eliminate tens of thousands of well paying jobs, destroy hundreds of millions of dollars of tax revenue; enrich the criminal underground; and endanger the safety of communities in the 17 medical cannabis states," said Harborside's Steve DeAngelo as he announced the 280E Reform Project to begin to fight back.

It's going to be an uphill battle. In the last Congress, Rep. Pete Stark (D-CA) introduced House Bill 1985, the Small Business Tax Equity Act, designed to end the 280E problem for medical marijuana businesses, but it went to the Republican-controlled House Ways and Means Committee, where it was never heard from again.

Still, something needs to happen, said Betty Aldworth, deputy director of the National Cannabis Industry Association, which this year is working with members of Congress to try to find a fix for the 280E problem.

"When Section 280E was created in the 1980s, no one imagined state-legal marijuana providers," Aldworth told the Chronicle. "Whether or not it is part of a larger effort to curtail the development of regulated models for providing marijuana, which is a model that is clearly preferable to leaving this popular and relatively safe medicine (or adult product) in the underground market, these onerous tax rates have severely hampered the development of the regulated market."

It's a brake on the overall economy, Aldworth said.

"Not only has it resulted in stymieing job development, but it also curtails other economic activity such as reinvestment in business and the rippling positive effects of that spending," she argued. "And in many cases, it has created a tax burden that is simply unbearable: many providers have had to close their doors and lay off their staffs because the tax burden was simply too great."

Because of this unintended application of 280E, medical marijuana providers are paying overall taxes at a rate two to three times those of other small businesses, Aldworth said.

"It's important to note that just as they want to apply for licenses, follow regulations, and otherwise participate in the legal business community, state-legal marijuana providers also want to pay their fair share of taxes," she pointed out. "Most small businesses pay an effective tax rate of between 13% and 27% on net income, according to the Small Business Administration. State-legal marijuana providers pay an average effective tax rate of 65-80%. An industry that can provide thousands of jobs is being held back by these crazy tax rates."

While the lobbyists look to Congress for a fix, one academic tax law expert thinks he has hit upon a novel solution, but not everyone agrees.

Benjamin Leff, a professor at American University's Washington College of Law, raised eyebrows at a Harvard University seminar this spring when he presented his report,Tax Planning For Marijuana Dealers, where he suggested that dispensaries get around 280E by registering with the IRS as tax-exempt social welfare organizations, known as 501(c)(3)s or 501(c)(4)s.

The IRS has already ruled that medical marijuana providers can be exempt under 501(c)(3) because its "public policy doctrine" does not allow charitable organizations to have purposes contrary to law, but in the paper, Leff argued that "a state-sanctioned marijuana seller could qualify as tax-exempt under 501(c)(4), since the public policy doctrine only applies to charities, and 501(c)(4) organizations are not charities."

The organization would have to be operated to improve the social and economic conditions of a neighborhood blighted by crime or poverty, by providing job training, employment opportunities, and improved business conditions for commercial development in the neighborhood, just like many existing community economic development corporations that run businesses.

"When taxes get too high, you can drive compliant dispensaries out of business," Leff told the Chronicle.

Americans for Safe Access' Hermes would agree with that, but he's not so sure about Leff's idea.

"The concept of medical marijuana dispensaries registering with the federal government as a 501(c)(4) in order to sidestep section 280E is novel and may be hypothetically valid," he said. "However, the IRS will refuse to grant tax-exempt status to a business that the agency believes is violating federal law. Perhaps, it would be possible for a dispensary to obtain 501(c)(4) status under false pretenses, but such status would not very likely withstand an IRS audit."

There are better ways, he said.

"A much more realistic and sensible approach -- pending a change to the federal classification of marijuana for medical use -- is to amend the tax code to exclude state-lawful medical marijuana businesses from Section 280E," Hermes recommended. "This is the kind of legislation that Congress should pass in order to allow states to implement their own medical marijuana laws, without undue interference by the federal government."

"I agree with everything he said," Leff replied. "But it's not just the Obama administration that is using 280E this way. The Supreme Court has held that there is no exception to the Controlled Substances Act for state-level legal marijuana sales, and since 280E makes references to Schedule I controlled substances, it applies to legal marijuana unless Congress changes the law. I totally agree that Congress should amend 280E to exempt marijuana selling that is legal under state law. Congress could also amend the Controlled Substances Act to remove marijuana from it, which would probably also make sense," he added.

Whether it is by act of Congress, internal policy shifts, or creative thinking by law school professors, some way has to be found to exempt state-permitted medical marijuana providers from the clutches of 280E and its punitive tax burden aimed at dope dealers, or there may not be any medical marijuana providers.

Indiana Welfare Drug Testing Bill Fails

A bill that would have required Hoosier State welfare recipients to undergo drug testing based on a "reasonable suspicion" of drug use was killed Friday after the state Senate refused to act on it. The bill had already passed the House, but died when Senate and House negotiators could not agree on what to do about payments to children whose parents had tested positive for drugs.

The bill, House Bill 1483, would have required the Department of Family and Social Services to create a drug abuse assessment program for welfare recipients, with those whose screenings indicated a likelihood of drug use subject to drug testing. People who tested positive would not be immediately subject to loss of benefits, but would have to successfully pass two consecutive drug tests within 40 to 60 days to continue receiving benefits. If the person does not provide two clean drug tests within four months, he or she would lose benefits for three months. After three months, the individual could again apply for benefits, but would have to pass a drug test.

As with other states seeking to avoid constitutional challenges by using the "reasonable suspicion" standard instead of mandatory, suspicionless drug testing, Indiana legislators used an expansive definition of the term. "Reasonable suspicion" could be derived from having a prior drug conviction, the results of the drug screening inventory, or having failed a previous drug test.

While legislators in both houses agreed on the desirability of subjecting welfare recipients to drug testing, the differed on a provision allowing welfare benefits to be provided to a third party to ensure that children did lose their support. The Senate had approved an amendment to the House version of the bill providing for third party payments, but the final version of the bill crafted by House and Senate negotiators did not include that language, and the Senate then refused to give it a final vote.

The bill's goal was to help families with drug-using parents "and at the same time not punish the children," said Senate President Pro Tem David Long (R-Fort Wayne). "You can turn yourself into a pretzel trying to do the right thing. We didn't feel it was ready."

Public benefits drug testing bills remain alive in several states this year, including Alabama, North Carolina, and Texas.

Indianapolis, IN
United States

Supreme Court Rules No Automatic Deportation for Minor Marijuana Possession

A 26-year-old Jamaican who has resided in the US since he was three should not automatically be deported for being caught with a small amount of marijuana, the US Supreme Court ruled Tuesday. The case was Moncrieffe v. Holder.

In that case, Adrien Moncrieffe was caught with 1.3 grams of marijuana when police in Georgia pulled him over for a traffic stop. He pleaded guilty to possession with intent to distribute in a plea bargain in which the state of Georgia agreed to expunge the charges after he served five years' probation.

But a federal immigration judge ruled that the plea bargain made Moncrieffe deportable as an "aggravated felon." While federal law considers possession of small amounts of weed a misdemeanor, federal officials argued that his plea was to an offense analogous to a federal felony and thus calling for automatic deportation under federal immigration law. With the lesser offense, Moncrieffe might potentially face deportation, but the government would not have to seek it and Moncrieffe could make his case before a judge if it did.

The US 5th Circuit Court of Appeals in New Orleans upheld the immigration judge's ruling, but the Supreme Court accepted the case for review last year. On Tuesday, seven justices agreed that Moncrieffe's conviction did not rise to the level of a drug trafficking offense that triggered the aggravated felony classification for deportation under the Immigration and Nationality Act (INA).

"Moncrieffe's conviction could correspond to either the CSA [Controlled Substances Act] felony or the CSA misdemeanor," Justice Sonia Sotomayor wrote for the majority. "Ambiguity on this point means that the conviction did not 'necessarily' involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony."

Although federal prosecutors had argued that any marijuana distribution conviction (even intending to distribute one gram) is "presumptively" a felony, Sotomayor and the other six justices weren't buying that.

"That is simply incorrect, and the government's argument collapses as a result," Sotomayor wrote. "Marijuana distribution is neither a felony nor a misdemeanor until we know whether the conditions in paragraph (4) attach."

That paragraph lists exceptions to the offense of marijuana distribution that allow defendants to be considered misdemeanor "simple drug possessors."

To follow prosecutors' logic, Sotomayor argued, "would render even an undisputed misdemeanor an aggravated felony. Recognizing that its approach leads to consequences Congress could not have intended, the government hedges its argument by proposing a remedy: Non-citizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration, just as a federal criminal defendant could do at sentencing," she wrote.

But that approach was "entirely inconsistent with both the INA's text and the categorical approach," Sotomayor stressed. "The government cites no statutory authority for such case-specific fact finding in immigration court, and none is apparent in the INA. Indeed, the government's main categorical argument would seem to preclude this inquiry: If the government were correct that 'the fact of a marijuana-distribution conviction alone constitutes a CSA felony,' then all marijuana distribution convictions would categorically be convictions of the drug trafficking aggravated felony, mandatory deportation would follow under the statute, and there would be no room for the government's follow-on fact finding procedure. The government cannot have it both ways."

And the government's approach would lead to a litany of "absurd consequences that would flow from" immigration investigations into such offenses. "That the only cure is worse than the disease suggests the government is simply wrong," she wrote.

Only Justices Clarence Thomas and Samuel Alito dissented, with Thomas arguing that since Georgia punished Moncrieffe's offense as a felony, he should be deportable under the CSA, and Alito warning that the majority had just given a free ride to "drug traffickers in about half the states."

"In those states," Alito wrote in his dissent, "even if an alien is convicted of possessing tons of marijuana with the intent to distribute, the alien is eligible to remain in this country. Large-scale marijuana distribution is a major source of income for some of the world's most dangerous drug cartels, but the court now holds that an alien convicted of participating in such activity may petition to remain in this country."

Of course, Moncrieffe was not convicted of "large-scale marijuana trafficking" and was not a member of one of "the world's most dangerous drug cartels;" he was a guy busted with a couple of joints worth of weed. And the government may still be able to deport people in Moncrieffe's situation, but now they will have to make the case for deportation before a judge.

Washington, DC
United States

Kansas Governor Signs Public Benefits Drug Test Bill

Kansas Gov. Sam Brownback (R) Tuesday signed into law a bill that requires applicants for welfare and unemployment benefits to undergo drug testing if there is "reasonable suspicion" they are using drugs. People who test positive would have to undergo drug treatment and job training at state expense before becoming eligible for cash assistance.

According to Senate Bill 149, "reasonable suspicion" may be derived from "applicant's or recipient's demeanor, missed appointments and arrest or other police records, previous employment or application for employment in an occupation or industry that regularly conducts drug screening, termination from previous employment due to use of a controlled substance or controlled substance analog or prior drug screening records of the applicant or recipient indicating use of a controlled substance or controlled substance analog."

It is not clear why having worked or applied for a job in "an occupation or industry that regularly conducts drug screening" creates "reasonable suspicion" that someone is using drugs, but that's what the law says.

Gov. Brownback signed the bill during a Tuesday afternoon, saying the state had an obligation to its residents to help them break their addictions and improve their lives through treatment and job training.

"Drug addiction is a scourge in Kansas. This is a horrific thing that hits so many people," Brownback said. "What this effort is about is an attempt to get ahead of it, and instead of ignoring the problem to start treating the problem."

Critics of the bill, including the American Civil Liberties Union state chapter, argued that public benefits recipients don't use drugs any more frequently than anyone else, that such laws perpetuate existing stigmas, and that they unnecessarily invade privacy. But those arguments did not sway the legislature or the governor.

Topeka, KS
United States

Public Benefits Drug Test Bills Move in Three States

Bills that would require recipients of public benefits such as welfare or unemployment benefits to submit to drug testing have advanced in three states. On Monday, an unemployment drug testing bill passed the Arkansas Senate. On Tuesday, a welfare drug testing bill won a Senate committee vote in North Carolina. And on Wednesday, a welfare drug testing bill passed the Texas Senate.

The Arkansas bill, Senate Bill 38, would require random, suspicionless drug testing of people receiving unemployment benefits. Those seeking unemployment would have to sign a waiver to allow for random drug testing, and they would be ineligible for benefits if they refused to sign or failed the drug test.

It passed the Republican-led Senate on a 25-5 vote and now goes to the House.

"Arkansas law states that you have to be adequately seeking employment, and by that you have to pass a drug test since so many employers require drug tests," said bill sponsor Sen. Jeremy Hutchinson (R-District 33), who said 80% of employers in the state require drug tests. His bill was "more of an enforcement mechanism than anything else," he added.

The bill is being opposed by the ACLU of Arkansas, which is threatening to fight it if it becomes law. But even if the bill gets through the House, Gov. Mike Beebe (D) has signaled it might not survive his veto pen.

"We have concerns about whether the bill will put us in violation of the federal unemployment laws administered by the US Department of Labor," Beebe spokesman Matt DeCample told Reuters. "There are also continued concerns as to whether the cost of implementing such a program would produce any real savings in offset."

The North Carolina bill, Senate Bill 594, sponsored by Sen. Jim Davis (R-Macon), would require applicants for Temporary Assistance for Needy Families (TANF) to undergo mandatory suspicionless drug tests at their expense. Applicants would be reimbursed if they tested negative, but denied benefits if they tested positive -- until they have entered and paid for drug treatment.

Things got testy before the measure passed the Senate Judiciary Committee Tuesday.

"If you have money to buy drugs, you have money to buy food, you have money to support your family," Davis said. "You don't deserve public assistance." Non-drug users "will gladly" pay for drug tests because they know they will be reimbursed, he said.

"If they're already there because they need food stamps, where are they going to come up with that money? They're scraping the bottom," Sen. Ellie Kinnaird (D-Orange) shot back.

Bill Rowe of the North Carolina Justice Center told lawmakers that studies showed drug use is no more common among welfare recipients than the general public, and that similar laws in Florida and Michigan had been found unconstitutional, sparking an angry reaction from one lawmaker.

"Our Fourth Amendment doesn't allow suspicionless testing of people," Rowe said. "There's no decision that says this is okay."

"You're okay with (drug users) getting federal dollars if they've had a doobie and get the munchies and need more food stamps?" challenged Sen. Tommy Tucker (R-Union). "Sit down."

Noting that the bill "mostly affects poor people and a significant number of them people of color," Sen. Angela Bryant (D-Rocky Mount) said its sponsors were letting their "prejudice" show. "There's a lot of people getting government money," she said. "Let's not start with poor people on this. Let's start with ourselves. When you run for election, you should have to take a drug test. If we give a scholarship, you should have to take a drug test."

"I really reject the notion of injecting race into this thing," Davis shot back. "I'm sick and tired of it. This is not a racial bill."

The bill was approved on party lines and now goes to the Senate Health Committee.

The Texas bill, Senate Bill 11, would require TANF applicants to undergo a drug use assessment, and if there is "good cause to suspect" drug use, they must then undergo a drug test. A positive drug test would result in a denial of benefits for six months, with a second positive drug test resulting in a denial of benefits for a year, although they could be restored after six months if drug treatment is completed.

People who had prior drug convictions or previous positive drug test results would face mandatory drug testing.

"Taxpayer dollars shouldn't be used to subsidize a person's drug habit," said bill sponsor Sen. Jane Nelson (R-Flower Mound).

"Welfare should never subsidize the irresponsible choices of otherwise capable people who instead elect to stay at home, play video games, and get high with their friends," Lt. Gov. David Dewhurst (R) said.

The bill passed the Senate on a 31-0 vote after Nelson agreed to language sought by Democrats that ensured that children of parents who tested positive wouldn't lose their benefits. It now goes to the House.

Welfare Drug Testing Bills Moving in Kansas, Texas

Bills that would force welfare applicants and recipients to undergo drug testing are moving in the state legislatures in Austin and Topeka. In Austin, a Texas Senate committee approved a drug testing bill, while in Topeka, the Kansas House approved a bill that would require drug testing of both welfare and unemployment recipients.

Both bills seek to avoid the constitutional problems that have plagued earlier welfare drug testing laws in Florida and Georgia. In those state, legislators passed bills calling for suspicionless mandatory drug testing of all recipients, which has been repeatedly blocked by the federal courts. The Kansas and Texas bills, on the other hand, only require drug testing upon "reasonable suspicion."

The Kansas bill, Senate Bill 149, says that reasonable suspicion may be based on any number of factors, "including, but not limited to, an applicant's or recipient's demeanor, missed appointments and arrest or other police records, previous employment or application for employment in an occupation or industry that regularly conducts drug screening, termination from previous employment due to use of a controlled substance or controlled substance analog or prior drug screening records of the applicant or recipient indicating use of a controlled substance or controlled substance analog."

The bill would require anyone who fails a drug test to get drug treatment and jobs skills training at government expense. Those who fail a second time would be ineligible for benefits for a year. The bill also would prevent anyone who is convicted of a drug felony after July from getting welfare for five years. A second conviction would mean a lifelong ban. House and Senate members also would be tested if there is a reasonable suspicion about their behavior.

The bill passed the Senate at the beginning of March, but the House version contains some minor changes that will have to be reconciled before final passage.

The Texas bill, Senate Bill 11, was introduced by Sen. Jane Nelson, the Republican chair of the Senate Health and Human Services Committee, which approved it Tuesday. It would require applicants to the state's Temporary Assistance to Needy Families (TANF) program to be screened for drug use. Those who appear to be using drugs or who have a previous drug conviction would be subject to drug testing. Applicants who tested positive would loss TANF funds for a year.

"Drug abuse destroys families, harms children and prevents individuals from living healthy, independent lives," Nelson said in a press release on Tuesday. "Because TANF is a direct cash assistance program, we have a responsibility to ensure that these funds are not being used to support a person’s drug habit."

The bill has the support of Gov. Rick Perry (R) and Lt. Gov. David Dewhurst (R). "Texas taxpayers will not subsidize or tolerate illegal drug abuse," Perry said in a statement in November. "Every dollar that goes to someone who uses it inappropriately is a dollar that can’t go to a Texan who needs it for housing, child care or medicine."

Public Benefits Drug Test Bill Advances in Kansas

The Kansas Senate Thursday approved a bill requiring welfare and unemployment benefits recipients to undergo drug tests if there is "reasonable suspicion" they are using drugs. But the definition of "reasonable suspicion" includes having worked in a field where drug testing is prevalent.

Democratic legislators successfully amended the bill so that its provisions also include lawmakers.

The Republican-backed bill, Senate Bill 149, passed on a 31-8 vote, largely along party lines.

According to the bill, reasonable suspicion may be arrived at, but is not limited to, "an applicant's or recipient's demeanor, missed appointments and arrest or other police records, previous employment or application for employment in an occupation or industry that regularly conducts drug screening, termination from previous employment due to unlawful use of a controlled substance or controlled substance analog or prior drug screening records of the applicant or recipient indicating unlawful use."

People who fail the drug test would lose benefits until they complete drug treatment and job training programs.

Republicans argued that the bill would help people with addictions kick their habit and prevent state tax dollars from being spent on drugs. But according to a legislative fiscal analysis, the bill would create "a net fiscal effect of increased expenditures of $1,095,468 in FY 2014" and create no net benefit to state coffers in years after that.

The bill now goes before the state House.

Wichita, KS
United States

Federal Appeals Court Blocks Florida Welfare Drug Test Law

The 11th Circuit Court of Appeals in Atlanta Tuesday upheld a preliminary injunction blocking Florida's 2011 law requiring welfare applicants to take and pass a drug test. The court held that mandatory, suspicionless drug testing violated the Fourth Amendment's proscription against warrantless searches and seizures.

The decision came in Lebron v. Secretary, Florida Department of Children and Families, in which Navy veteran, single father, and university student Luis LeBron applied for Temporary Assistance for Needy Families (TANF) funds, but refused to be drug tested. His challenge to the law led to a federal district court's preliminary injunction halting the implementation of the law. The 11th Circuit's ruling Tuesday upheld the preliminary injunction.

Federal courts have generally found random, suspicionless drug testing to be a violation of the Fourth Amendment, but have carved out two "special needs" exceptions: for public safety (allowing testing of pilots, truck  drivers, and police doing drug enforcement) and children (allowing testing of students involved in athletic or extracurricular activities). The 11th Circuit held that the Florida law did not fall within those exceptions.

The state of Florida "presented no empirical evidence to bolster its special needs argument that suspicionless drug testing of TANF applicants is in any way warranted," the court held. "There is nothing so special or immediate about the government’s interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment."

"Today, the 11th Circuit Court of Appeals, in affirming a preliminary injunction halting Florida's law mandating suspicionless drug testing of TANF applicants, set important precedent, which will hopefully curtail other states from following in Florida's stampede over individuals' Fourth Amendment rights, said Shawn Heller, a co-counsel on the case. "As Judge Jordan succinctly stated in his concurrence, 'constitutionally speaking, the state's position is simply a bridge too far.'" (Heller first joined the case while on staff at the Florida Justice Institute, which argued the case as co-counsel to the ACLU of Florida.)

"The 11th Circuit's decision deals a devastating blow to any state's attempt to impose suspicionless drug testing as a condition of receiving governmental benefits," said Daniel Abrahamson, director of legal affairs at the Drug Policy Alliance, which had filed an amicus brief in the case. "We hope that lawmakers will choose to honor the constitution rather than scapegoat poor people in efforts to address perceived drug problems."

In that amicus brief, the Drug Policy Alliance was joined by the American Academy of Addiction Psychiatry, Physicians and Lawyers for National Drug Policy, the Legal Action Center, Center for Juvenile and Criminal Justice, National Employment Law Project, Child Welfare Organizing Project, and National Advocates for Pregnant Women.

The brief argued that Florida’s drug testing scheme does not achieve any of its purported goals of protecting the well-being of children, promoting the employability of person on public assistance and assuring fiscal integrity, and does not pass the "special needs" test that is required to justify otherwise unconstitutional searches by government officials.

The ruling comes as public benefits drug testing measures continue to be introduced -- and sometimes advanced -- in states across the country. Some of those bills attempt to overcome the Fourth Amendment obstacles cited by the appeals court here by attempting to set up a "reasonable suspicion" assessment before mandating drug testing.

Atlanta , GA
United States

Indiana House Approves Welfare Drug Test Bill

The Republican-controlled Indiana House voted overwhelmingly Monday to approve a "reasonable suspicion" drug testing bill for welfare recipients. House Bill 1483 advanced to the state Senate on a 78-17 vote.

The bill would require all adult recipients of Temporary Aid for Needy Families (TANF) benefits to undergo an assessment to see if there is "reasonable suspicion" that they might be using illicit drugs. Recipients who are deemed "suspicious" would then go into a pool for random drug testing, with half of the pool members being subjected to drug testing.

People who fail the drug test would lose their benefits unless they enrolled in a drug treatment program and produced negative results on future drug tests. Repeated positive drug tests could result in the permanent loss of benefits.

The bill defines "reasonable suspicion" as having been charged with a drug offense, having previously presented positive drug test results, or having been assessed as a likely drug user by the Substance Abuse Subtle Screening Inventory test, a commercial test that claims a 90% accuracy rate.

The House approved the bill despite a legislative staff financial analysis that showed the state would spend $2.7 million on the program to possibly the save the state $1.5 million in denied benefits. That means the state would lose $1.2 million next year if the bill were to become law.

Indianapolis, IN
United States

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