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North Dakota Welfare Drug Testing Bill Defeated

A bill that would have required welfare recipients to undergo drug testing died Friday in the North Dakota House. It was defeated soundly on a 72-19 vote.

North Dakota becomes the second state to kill welfare drug test bills this year. A similar bill in Virginia was defeated earlier this month.

The North Dakota bill, House Bill 1385, originally would have required all welfare applicants to undergo mandatory, suspicionless drug testing at their own expense as part of the application process. Those who failed the drug test would have lost benefits for one year, or six months if they completed drug treatment and passed a drug test. The bill was amended in committee to require drug tests of applicants only upon "reasonable suspicion."

Mandatory suspicionless drug test bills have become law in Florida and Georgia, but have been blocked or put on hold by legal challenges. Federal courts have repeatedly held that a drug test constitutes a search under the meaning of the Fourth Amendment, and a search requires either a warrant or probable cause. Some states have sought to address that legal problem by calling for an initial assessment to see if there was evidence that would support a drug test, as North Dakota legislators did in committee.

But that was not enough to keep the bill alive. It was opposed by state social services officials, who said it was probably unconstitutional and unfairly targeted the poor. Legislators also balked at the potential costs, which a legislative fiscal analysis put at $595,000 in program costs for the first two years, as well as $125,000 in anticipated legal costs.

The state only has 1,800 participants in the Temporary Assistance to Needy Families program, and 45% of those are children.

Bismarck, ND
United States

Virginia Welfare Drug Testing Bill Defeated

A bill backed by Republicans that would have required drug screening and testing of welfare recipients died Monday in the Virginia Senate. The measure failed by one vote in the evenly divided Senate when one Republican didn't vote.

Last year, a similar measure ended up with a tied vote in the Senate, allowing Republican Lt. Gov. Bill Bolling to cast a tie-breaking vote and advance the bill to the House. It was then killed in the House.

The measure, Senate Bill 271, introduced by Sen. Charles Carrico (R-Grayson), would have required the state's welfare-to-work program to screen participants "to determine if probable cause exists to believe the participant is using illegal substances" and, if such a determination is made, "a formal substance abuse assessment of the participant, which may include drug testing."

Those who tested positive would have to enter a drug treatment program or lose benefits for a year. Those who refused to be tested would also lose benefits for a year.

Similar legislation is afoot in a number of other states. Some states, like Virginia, have attempted to overcome constitutional problems with suspicionless drug testing by providing for an initial screening to come up with probable cause, but even that fix hasn't managed to overcome political problems in most states.

Opponents of such legislation argue that such programs cost more money than they save, that they are an attack on poor people, and that there is no evidence of widespread drug use among public benefits recipients.

"Why are poor people singled out for testing," asked Sen. Marnie Locke (D-Hampton) before voting against the bill. "Why not legislators or bailed-out CEOs?"

Richmond, VA
United States

Welfare Drug Testing Bill Moving in Virginia

A Republican-backed bill that would subject welfare recipients to drug testing has passed a second committee vote and now heads for the Senate floor. The bill was approved in the Senate Rehabilitation and Social Services Committee earlier this month and passed out of the Senate Finance Committee Tuesday on a 10-5 vote.

The bill, Senate Bill 721, would require all 14,500 participants in the state's welfare-to-work program to undergo preliminary screening to assess their likelihood of drug use. Those flagged as potential drug users would then be tested by the Department of Social Services.

Failing a drug test would result in loss of benefits for a year, as would refusing to take one. But benefits could be reinstated if the person undergoes drug treatment. That provision was added in hopes of making the bill more palatable to the House, where a similar measure died last year.

"It's been toned down quite a bit from the original thing. "If there's welfare recipients using, we can help them with their addiction," said Sen. Frank Wagner (R-Virginia Beach) who sits on the Finance Committee. "You're hoping welfare payments are going to support families and not to purchase narcotics," he said in remarks reported by the Washington Examiner.

But opponents of the legislation said drug testing welfare recipients stigmatizes poor people and unfairly targets them while not aiming at other recipients of government largesse, such as students who receive college tuition grants, small businesses that get economic assistance, or legislators who get their paychecks from the state.

"Why are Republicans so suspicious of poor people? It begs the question," said Sen. Louise Lucas (D-Portsmouth). "This is insulting. The fact is, very few of those who qualify for temporary public assistance use illegal drugs."

Virginia is one of at least a dozen states where bills mandating drug testing for public benefits recipients have been filed so far this year. That number is likely to increase as the legislative season gears up. Last year, about two dozen such bills were filed, but only one in Georgia passed.

Florida had passed a welfare drug testing bill in 2011, but it has been put on hold by a federal court judge while she considers whether to rule it unconstitutional as a suspicionless search under the Fourth Amendment. Georgia, too, has put its bill on hold pending that decision.

The Virginia bill, however, seeks to avoid that constitutional problem by adding the preliminary step of screening in order to have a "reasonable suspicion" as the basis for the drug testing.

Richmond, VA
United States

The Top Ten Drug Policy Stories of 2012 [FEATURE]

In some ways, 2012 has been a year of dramatic, exciting change in drug policy, as the edifice of global drug prohibition appears to crumble before our eyes. In other ways it is still business as usual in the drug war. Marijuana prohibition is now mortally wounded, but there were still three-quarters of a million pot arrests last year. The American incarceration mania appears to be running its course, but drug arrests continue to outnumber any other category of criminal offense. There is a rising international clamor for a new drug paradigm, but up until now, it's just talk.

The drug prohibition paradigm is trembling, but it hasn't collapsed yet -- we are on the cusp of even more interesting times. Below, we look at the biggest drug policy stories of 2012 and peer a bit into the future:

1. Colorado and Washington Legalize Marijuana!

Voters in Colorado and Washington punched an enormous and historic hole in the wall of marijuana prohibition in November. While Alaska has for some years allowed limited legal possession in the privacy of one's home, thanks to the privacy provisions of the state constitution, the November elections marked the first time voters in any state have chosen to legalize marijuana. This is an event that has made headlines around the world, and for good reason -- it marks the repudiation of pot prohibition in the very belly of the beast.

And it isn't going away. The federal government may or may not be able to snarl efforts by the two states to tax and regulate legal marijuana commerce, but few observers think it can force them to recriminalize marijuana possession. It's now legal to possess up to an ounce in both states and to grow up to six plants in Colorado and -- barring a sudden reversal of political will in Washington or another constitutional amendment in Colorado -- it's going to stay that way. The votes in Colorado and Washington mark the beginning of the end for marijuana prohibition.

2. Nationally, Support for Marijuana Legalization Hits the Tipping Point

If Colorado and Washington are the harbingers of change, the country taken as a whole is not far behind, at least when it comes to public opinion. All year, public opinion polls have showed support for marijuana legalization hovering right around 50%, in line with last fall's Gallup poll that showed steadily climbing support for legalization and support at 50% for the first time. A Gallup poll this month showed a 2% drop in support, down to 48%, but that's within the margin of error for the poll, and it's now a downside outlier.

Four other polls released this month
demonstrate a post-election bump for legalization sentiment. Support for legalization came in at 47%, 51%, 54%, and 57%, including solid majority support in the West and Northeast. The polls also consistently find opposition to legalization strongest among older voters, while younger voters are more inclined to free the weed.

As Quinnipiac pollster Peter Brown put it after his survey came up with 51% support for legalization, "This is the first time Quinnipiac University asked this question in its national poll so there is no comparison from earlier years. It seems likely, however, that given the better than 2-1 majority among younger voters, legalization is just a matter of time."

Caravan for Peace vigil, Brownsville, Texas, August 2012
3. Global Rejection of the Drug War

International calls for alternatives to drug prohibition continued to grow ever louder this year. Building on the work of the Latin American Commission on Drugs and Democracy and the Global Commission on Drug Policy, the voices for reform took to the stage at global venues such as the Summit of the Americas in Cartagena, Colombia, in April, the International AIDS Conference in Washington in July, and at the United Nations General Assembly in September.

While calls for a new paradigm came from across the globe, including commissions in Australia and the United Kingdom, this was the year of the Latin American dissidents. With first-hand experience with the high costs of enforcing drug prohibition, regional leaders including Colombian President Santos, Guatemalan President Perez Molina, Costa Rican President Chinchilla, and even then-Mexican President Calderon all called this spring for serious discussion of alternatives to the drug war, if not outright legalization. No longer was the critique limited to former presidents.

That forced US President Obama to address the topic at the Summit of the Americas and at least acknowledge that "it is entirely legitimate to have a conversation about whether the laws in place are doing more harm than good in certain places" before dismissing legalization as a policy option. But the clamor hasn't gone away -- instead, it has only grown louder -- both at the UN in the fall and especially since two US states legalized marijuana in November.

While not involved in the regional calls for an alternative paradigm, Uruguayan President Mujica made waves with his announcement of plans to legalize the marijuana commerce there (possession was never criminalized). That effort appears at this writing to have hit a bump in the road, but the proposal and the reaction to it only added to the clamor for change.

4. Mexico's Drug War: The Poster Child for Drug Legalization

Mexico's orgy of prohibition-related violence continues unabated with its monstrous death toll somewhere north of 50,000 and perhaps as high as 100,000 during the Calderon sexenio, which ended this month. Despite all the killings, despite Calderon's strategy of targeting cartel capos, despite the massive deployment of the military, and despite the hundreds of millions of dollars in US aid for the military campaign, the flow of drugs north and guns and money south continues largely unimpeded and Mexico -- and now parts of Central America, as well -- remain in the grip of armed criminals who vie for power with the state itself.

With casualty figures now in the range of the Iraq or Afghanistan wars and public safety and security in tatters, Calderon's misbegotten drug war has become a lightning rod for critics of drug prohibition, both at home and around the world. In the international discussion of alternatives to the status quo -- and why we need them -- Mexico is exhibit #1.

And there's no sign things are going to get better any time soon. While Calderon's drug war may well have cost him and his party the presidency (and stunningly returned it to the old ruling party, the PRI, only two elections after it was driven out of office in disgrace), neither incoming Mexican President Enrique Pena Nieto nor the Obama administration are showing many signs they are willing to take the bold, decisive actions -- like ending drug prohibition -- that many serious observers on all sides of the spectrum say will be necessary to tame the cartels.

The Mexican drug wars have also sparked a vibrant and dynamic civil society movement, the Caravan for Peace and Justice, led by poet and grieving father Javier Sicilia. After crisscrossing Mexico last year, Sicilia and his fellow Mexican activists crossed the border this summer for a three-week trek across the US, where their presence drew even more attention to the terrible goings on south of the border.

5. Medical Marijuana Continues to Spread, Though the Feds Fight Back

Eighteen states and the District of Columbia have now legalized the use of marijuana for medical purposes, and while there was only one new one this year, this has been a year of back-filling. Medical marijuana dispensaries have either opened or are about to open in a number of states where it has been legal for years but delayed by slow or obstinate elected officials (Arizona, New Jersey, Washington, DC) or in states that more recently legalized it (Massachusetts).

None of the newer medical marijuana states are as wide open as California, Colorado, or Montana (until virtual repeal last year), as with each new state, the restrictions seem to grow tighter and the regulation and oversight more onerous and constricting. Perhaps that will protect them from the tender mercies of the Justice Department, which, after two years of benign neglect, changed course last year, undertaking concerted attacks on dispensaries and growers in all three states. That offensive was ongoing throughout 2012, marked by federal prosecutions and medical marijuana providers heading to federal prison in Montana. While federal prosecutions have been less resorted to in California and Colorado, federal raids and asset forfeiture threat campaigns have continued, resulting in the shuttering of dozens of dispensaries in Colorado and hundreds in California. There is no sign of a change of heart at the Justice Department, either.

6. The Number of Drug War Prisoners is Decreasing

The Bureau of Justice Statistics announced recently that the number of people in America's state and federal prisons had declined for the second year in a row at year's end 2011. The number and percentage of drug war prisoners is declining, too. A decade ago, the US had nearly half a million people behind bars on drug charges; now that number has declined to a still horrific 330,000 (not including people doing local jail time). And while a decade ago, the percentage of people imprisoned for drug charges was somewhere between 20% and 25% of all prisoners, that percentage has now dropped to 17%.

That decline is mostly attributable to sentencing reforms in the states, which, unlike the federal government, actually have to balance their budgets. Especially as economic hard times kicked in in 2008, spending scarce taxpayer resources on imprisoning nonviolent drug offenders became fiscally and politically less tenable. The passage of the Proposition 36 "three strikes" sentencing reform in California in November, which will keep people from being sentenced to up to life in prison for trivial third offenses, including drug possession, is but the latest example of the trend away from mass incarceration for drug offenses.

The federal government is the exception. While state prison populations declined last year (again), the federal prison population actually increased by 3.1%. With nearly 95,000 drug offenders doing federal time, the feds alone account for almost one-third of all drug war prisoners.

President Obama could exercise his pardon power by granting clemency to drug war prisoners, but it is so far a power he has been loathe to exercise. An excellent first candidate for presidential clemency would be Clarence Aaron, the now middle-aged black man who has spent the past two decades behind bars for his peripheral role in a cocaine deal, but activists in California and elsewhere are also calling for Obama to free some of the medical marijuana providers now languishing in federal prisons. The next few days would be the time for him to act, if he is going to act this year.

7. But the Drug War Juggernaut Keeps On Rolling, Even if Slightly Out of Breath

NYC "stop and frisk" protest of mass marijuana arrests
According to annual arrest data released this summer by the FBI, more than 1.53 million people were arrested on drug charges last year, nearly nine out of ten of them for simple possession, and nearly half of them on marijuana charges. The good news is that is a decline in drug arrests from 2010. That year, 1.64 million people were arrested on drug charges, meaning the number of overall drug arrests declined by about 110,000 last year. The number of marijuana arrests is also down, from about 850,000 in 2010 to about 750,000 last year.

But that still comes out to a drug arrest every 21 seconds and a marijuana arrest every 42 seconds, and no other single crime category generated as many arrests as drug law violations. The closest challengers were larceny (1.24 million arrests), non-aggravated assaults (1.21 million), and DWIs (1.21 million). All violent crime arrests combined totaled 535,000, or slightly more than one-third the number of drug arrests.

The war on drugs remains big business for law enforcement and prosecutors.

8. And So Does the Call to Drug Test Public Benefits Recipients

Oblivious to constitutional considerations or cost-benefit analyses, legislators (almost always Republican) in as many as 30 states introduced bills that would have mandated drug testing for welfare recipients, people receiving unemployment benefits, or, in a few cases, anyone receiving any public benefit, including Medicaid recipients. Most would have called for suspicionless drug testing, which runs into problems with that pesky Fourth Amendment requirement for a search warrant or probable cause to undertake a search, while some attempted to get around that obstacle by only requiring drug testing upon suspicion. But that suspicion could be as little as a prior drug record or admitting to drug use during intake screening.

Still, when all the dust had settled, only three states -- Georgia, Oklahoma, and Tennessee -- actually passed drug testing bills, and only Georgia's called for mandatory suspicionless drug testing of welfare recipients. Bill sponsors may have been oblivious, but other legislators and stakeholders were not. And the Georgia bill is on hold, while the state waits to see whether the federal courts will strike down the Florida welfare drug testing bill on which it is modeled. That law is currently blocked by a federal judge's temporary injunction.

It wasn't just Republicans. In West Virginia, Democratic Gov. Roy Tomblin used an executive order to impose drug testing on applicants to the state's worker training program. (This week came reports that only five of more than 500 worker tests came back positive.) And the Democratic leadership in the Congress bowed before Republican pressures and okayed giving states the right to impose drug testing requirements on some unemployment recipients in return for getting an extension of unemployment benefits.

This issue isn't going away. Legislators in several states, including Indiana, Ohio, Texas, and West Virginia have already signaled they will introduce similar bills next year, and that number is likely to increase as solons around the country return to work.

9. The US Bans New Synthetic Drugs

In July, President Obama signed a bill banning the synthetic drugs known popularly as "bath salts" and "fake weed." The bill targeted 31 specific synthetic stimulant, cannabinoid, and hallucinogenic compounds. Marketed under brand names like K2 and Spice for synthetic cannabinoids and under names like Ivory Wave, among others, for synthetic stimulants, the drugs have become increasingly popular in recent years. The drugs had previously been banned under emergency action by the DEA.

The federal ban came after more than half the states moved against the new synthetics, which have been linked to a number of side effects ranging from the inconvenient (panic attacks) to the life-threatening. States and localities continue to move against the new drugs, too.

While the federal ban demonstrates that the prohibitionist reflex is still strong, what is significant is the difficulty sponsors had in getting the bill passed. Sen. Rand Paul (R-KY) put a personal hold on the bill until mandatory minimum sentencing requirements were removed and also argued that such efforts were the proper purview of the states, not Washington. And for the first time, there were a substantial number of Congress members voting "no" on a bill to create a new drug ban.

10. Harm Reduction Advances by Fits and Starts, At Home and Abroad

Harm reduction practices -- needle exchanges, safer injection sites, and the like -- continued to expand, albeit fitfully, in both the US and around the globe. Faced with a rising number of prescription pain pill overdoses in the US -- they now outnumber auto accident fatalities -- lawmakers in a number of states have embraced "911 Good Samaritan" laws granting immunity from prosecution. Since New Mexico passed the first such law in 2007, nine others have followed. Sadly, Republican Gov. Chris Christie vetoed the New Jersey bill this year.

Similarly, the use of the opioid antagonist naloxone, which can reverse overdoses and restore normal breathing in minutes, also expanded this year. A CDC report this year that estimated it had saved 10,000 lives will only help spread the word.

There has been movement internationally as well this year, including in some unlikely places. Kenya announced in June that it was handing out 50,000 syringes to injection drug users in a bid to reduce the spread of AIDS, and Colombia announced in the fall plans to open safe consumption rooms for cocaine users in Bogota. That's still a work in progress.

Meanwhile, the UN Commission on Narcotic Drugs unanimously supported a resolution calling on the World Health Organization and other international bodies to promote measures to reduce overdose deaths, including the expanded use of naloxone; Greece announced it was embracing harm reduction measures, including handing out needles and condoms, to fight AIDS; long-awaited Canadian research called for an expansion of safe injection sites to Toronto and Ottawa; and Denmark first okayed safe injection sites in June, then announced it is proposing that heroin in pill form be made available to addicts. Denmark is one of a handful of European countries that provide maintenance doses of heroin to addicts, but to this point, the drug was only available for injection. France, too, announced it was going ahead with safe injection sites, which could be open by the time you read this.  

This has been another year of slogging through the mire, with some inspiring victories and some oh-so-hard-fought battles, not all of which we won. But after a century of global drug prohibition, the tide appears to be turning, not least here in the US, prohibition's most powerful proponent. There is a long way to go, but activists and advocates can be forgiven if they feel like they've turned a corner. Now, we can put 2012 to bed and turn our eyes to the year ahead.

Georgia Governor Puts Welfare Drug Testing on Hold

Georgia's new welfare drug testing law was supposed to go into effect July 1, but that didn't happen. According to a spokesman for Gov. Nathan Deal (R), the governor still supports the law, but will hold off on implementation until a legal challenge against a similar bill next door in Florida is resolved.

The Florida law took effect last July, but was blocked by a federal judge in October. That case is expected to go before the 11th US Circuit Court of Appeals.

Civil rights and civil liberties groups in Georgia said when the law was passed they would challenge it as soon as it is implemented. But they may not have to if the court, which has jurisdiction in Alabama, Florida, and Georgia, strikes down the Florida law.

The federal courts have generally taken a dim view of random, suspicionless drug testing. They consider drug testing a search under the meaning of the Fourth Amendment and have carved out only limited exceptions to the general prohibition against warrantless drug testing. Those exceptions include public safety-sensitive positions (airline pilots, truck drivers), law enforcement personnel engaged in anti-drug work, and high school students involved in athletics or extracurricular activities.

"The governor feels confident that the law in Florida, and therefore in Georgia, will be upheld," spokesman Brian Robinson told the Associated Press. "We plan to move forward on this as soon as we can, but we're willing to wait a little bit longer on the federal courts. There's just no need in us hopping in."

Under the Georgia law, the state Department of Human Services is mandated to create a drug testing program for welfare applicants at their own expense. Those who pass the test would be reimbursed, but those who don't would not only not be reimbursed, they would be ineligible to receive benefits for one month. A second positive test would result in a three-month ban, while a third positive test would result in one year of ineligibility.

Any applicant who fails a drug test must first pass another drug test before benefits would be reinstated. The department would have to provide people who fail the drug test with a list of drug treatment providers, but the state would not pay for drug treatment for them.

Sen. Vincent Fort (D-Atlanta) told the AP Deal should have voiced his concerns about the law when it was being debated.

"During the debate, we talked about the viability of the law based on the Florida case," said Fort, who opposed the measure and was among the parties vowing legal action against the law. "It would've been appropriate for him at that time to have injected that point, but he's waiting until after he signed it, until it's about to be implemented. He chose not to say anything about it."

Ford said that if the law is upheld, it would set a dangerous precedent.

"The question is, if you're poor and need assistance, do you forfeit your constitutional rights or not?" he said. "I think that's dangerous. If it's poor people today, it could be other people tomorrow."

Atlanta, GA
United States

Second Medical Marijuana Patient Denied Transplant at LA Hospital

Cedars-Sinai Hospital in Los Angeles has for the second time in the past year denied a life-saving organ transplant to a patient because of her medical marijuana use, Americans for Safe Access reported this week. The hospital removed qualified medical marijuana patient Toni Trujillo from its kidney transplant list earlier this year, citing her medical marijuana use.

Trujillo has had kidney problems most of her life and has been on dialysis for the past five years, since an earlier transplanted kidney began failing. She came to California from Pennsylvania two years ago to take advantage of specialized treatment offered at Cedars-Sinai. She explained that to her physician at Cedars that she used medical marijuana as an appetite stimulant to increase her protein levels -- a critical need for dialysis patients -- and got no negative feedback.

She continued to use medical marijuana while awaiting her transplant. Then, in April, after being on a waiting list for six years, Trujillo was told over the phone that she had been de-listed because her medical marijuana use was considered "substance abuse." She was never sent a formal de-listing letter, confirming her status.

"Denying necessary transplants to medical marijuana patients is the worst kind of discrimination," said ASA Chief Counsel Joe Elford, who authored a letter to Cedars-Sinai urging the hospital to reconsider. "Cedars-Sinai would not be breaking any laws, federal or otherwise, by granting Toni Trujillo a kidney transplant, and it's certainly the ethical thing to do."

Trujillo's plight echoes that of Norman Smith, a medical marijuana patient who was diagnosed with inoperable liver cancer in 2009. Smith's oncologist at Cedars-Sinai, Dr. Steven Miles, approved of his medical marijuana use as a means to deal with the effects of chemotherapy, but Smith was removed from the liver transplant list in 2011 because of medical marijuana, just two months before he would have been eligible. Last week, Smith was told he had 90 days to live. ASA also sent a letter on Smith's behalf.

Cedars-Sinai told both Trujillo and Smith they must not only test negative for marijuana for six months to re-qualify for the wait list, but also take drug abuse counseling for the same period. Both are complying with the requirements and have chosen to forgo using medical marijuana, though it has a significant therapeutic benefit for them. Smith could especially benefit as he is currently undergoing chemotherapy for his cancer, and his appetite is severely diminished. It appears Trujillo and Smith may eventually be put back on the list, but at the bottom. Trujillo recently contracted peritonitis, a bacterial infection, as a result of her dialysis.

"I don't know why Cedars would deny me a transplant simply because I use a legal medication that works for me," said Trujillo. "I hope they listen to reason and change their misguided policy, if not for me then at least for the others who will certainly follow."

Los Angeles, CA
United States

Tennessee Governor Signs Welfare Drug Testing Bill

Tennessee has become the latest state to jump on the drug testing for public benefits bandwagon. Last Thursday, Gov. Bill Haslam (R) signed into law House Bill 2725, which requires applicants for welfare to submit to a drug test if, during preliminary screening, state workers suspect he or she is using drugs.

Under the new law, persons who do not submit to drug testing lose their benefits. Those who test positive lose their benefits for one year, or for six months if they undergo drug treatment and test negative at least twice and 30 days apart. Those who test positive after being readmitted to the program face a loss of benefits for three years, or less if they undergo treatment and test negative at least twice and 30 days apart.

In the past two years, two states, Florida and Georgia, have passed laws requiring mandatory, suspicionless drug testing of welfare applicants. The Florida law has been blocked by a federal judge's temporary order as she considers whether to declare it an unconstitutional violation of the Fourth Amendments proscription against warrantless searches. Civil liberties and civil rights advocates in Georgia have vowed similar action against the law there when it goes into effect July 1. An earlier Michigan attempt to impose suspicionless drug testing of welfare recipients was found unconstitutional by a divided federal appeals court it 2003. That ruling was not appealed.

Several other states have passed public benefits drug testing laws with a screening process to create "reasonable suspicion" that a given individual might be a drug user. Those include Arizona and Missouri last year and Utah and now Tennessee this year. None of those laws have faced legal challenges, but in their fiscal impact statement, legislative analysts estimated the state would spend $100,000 to defend the law in court.

Haslam didn't issue a signing statement, but he told the Associated Press he's comfortable with the legislation because the Department of Human Services will develop rules for testing and the attorney general will ensure the law is constitutional. The original version of the bill called for suspicionless drug testing of welfare applicants, but Attorney General Robert Cooper (D) warned that such testing was probably unconstitutional, and the bill was amended.

Nashville, TN
United States

New Jersey Marijuana Decriminalization Bill Advances

A bill that would decriminalize the possession of up to 15 grams (a little more than a half-ounce) of marijuana was approved Monday by the Assembly Judiciary Committee. The bill, Assembly Bill 1465, now heads for an Assembly floor vote.

http://stopthedrugwar.org/files/new-jersey-map.jpg
Under current law, small-time pot possession is punishable by up to six months in jail. Under AB 1465, the threat of jail would be removed and infractions would be punishable by a $150 fine for a first offense, $200 for a second offense, and $500 for a third offense.

Some 22,000 people were arrested for simple marijuana possession in the state last year, with blacks disproportionately represented. In addition to possible jail time, those arrested face other collateral consequences, such as difficulties finding a job or qualifying for housing.

The crowd in the hearing room and most witnesses, including a retired corrections officer, defense attorneys, a clergyman, a college instructor, and a representative from a drug addiction prevention group favored decriminalization, according to an account carried by New Jersey Real-Time News.

"Some acts harm society and they warrant the intervention of police, prosecutors and perhaps even incarceration," said the bill's prime Republican sponsor, Michael Patrick Carroll (R-Morris), who is also a committee member. "Other acts warrant at best, a spanking, and these seems to be one of these situations."

"These long-term consequences are unjust and expensive," said Candice Singer, a research analyst from the New Jersey chapter of the National Council on Alcoholism and Drug Dependence. "The police manpower utilized for these arrests is costly. It is beyond dispute that a criminal record interferes with one's ability to maintain employment. This not only hurts the individual and the individual's family, but it harms the economy and the state, preventing residents from becoming employed and paying income taxes."

Only Bruce Hummer of the New Jersey Prevention Network, which represents treatment professionals, spoke against the bill. He said decriminalization would "send a mixed message to our youth," who would be more likely to use the herb if it was seen as less harmful and "accepted" by the community.

But retired corrections officer Harry Camisa had a powerful retort to Hummer. "I have seen firsthand the devastating effects on these young kids who are sent to jail for what I consider a minor offense," Camisa said. "I always felt bad for the very young ones because by the time they asked for protective custody they had already been beaten with a lock in a sock, stabbed or sodomized."

Forty years ago, the Shafer Commission, recognizing that harsh penalties for marijuana had no scientific basis, called for the decriminalization of possession of small amounts for personal use. A handful of states took that advice in the 1970s, and after a long interregnum beginning with the Reagan years, in the past decade, more states have come on board. The number is now 14.

Trenton, NJ
United States

Oklahoma Governor Signs Welfare Drug Test Bill

Oklahoma Gov. Mary Fallin (R) last Wednesday signed into law a bill, House Bill 2388, that requires welfare applicants to be screened for possible drug use and drug tested upon suspicion they are using. They would be denied benefits if they test positive. The screening requirement is designed to surmount constitutional objections to mandatory, suspicionless drug testing of public benefits applicants and recipients.

Oklahoma Gov. Mary Fallin (wikimedia.org)
In the past two years, two states, Florida and Georgia, have passed laws requiring mandatory, suspicionless drug testing of welfare applicants. The Florida law has been blocked by a federal judge's temporary order as she considers whether to declare it an unconstitutional violation of the Fourth Amendments proscription against warrantless searches. Civil liberties and civil rights advocates in Georgia have vowed similar action against the law there when it goes into effect July 1. An earlier Michigan attempt to impose suspicionless drug testing of welfare recipients was found unconstitutional by a divided federal appeals court it 2003. That ruling was not appealed.

Several other states have passed public benefits drug testing laws with a screening process to create "reasonable suspicion" that a given individual might be a drug user. Those include Arizona and Missouri last year and Utah and Tennessee this year. The Tennessee bill has yet to be signed by the governor, but he has said he will do so. None of these state laws have yet faced legal challenges.

The Oklahoma law takes effect November 1 and is aimed at adults applying for the Temporary Assistance to Needy Families (TANF) program. Applicants who refuse to take the drug test or who test positive will be denied benefits. Applicants who test positive and then undergo a drug treatment program -- at their own expense -- can reapply for benefits after six months.

Child-only cases and cases where the parent is underage would not have to be drug tested. If a parent is denied benefits, the bill allows for payments to be made to an alternative payee.

Under an amendment passed in the Senate, the state will pay for the cost of drug testing. The bill originally called for applicants to pick up the tab.

"House Bill 2388 will help ensure welfare checks are not being used to pay for drugs. Hard working taxpayers shouldn't be asked to subsidize drug abuse, and this bill will help to ensure they are not," Fallin said in a signing statement.

"Additionally, HB 2388 helps to preserve the mission of state-funded welfare -- to provide a social safety net helping the unemployed and needy get back on their feet, find work and support their families," the Republican governor continued. "Unfortunately, drug abuse prevents many recipients of welfare from achieving any of these goals. Drug addiction and illegal drug use contribute to child abuse and child neglect. They also make it difficult to find and hold a job. For all these reasons it is important for drug users and those with substance abuse problems to seek treatment rather than simply being handed a check from Oklahoma taxpayers."

Oklahoma Democrats opposed the bill, with Sen. Jim Wilson (D-Tahlequah) calling it "poor policy" and "mean-spirited" during earlier debates, and Sen. Tom Ivester (D-Sayre) questioning why only one population that receives state assistance should be subjected to drug testing. But their Republican colleagues weren't listening.

Bills to Drug Test the Poor Face Tough Going [FEATURE]

With states facing severe budget pressures, bills to require drug testing to apply for or receive public benefits -- welfare, unemployment benefits, even Medicaid -- have been all the rage at Republican-dominated state houses this year. Fail the drug test and lose your benefits. The bills carry a powerful appeal that plays well even beyond typically Republican constituencies, combining class, gender and racial stereotypes with a distaste for wasteful government spending. But they have also faced surprisingly tough opposition.

Temporary Assistance for Needy Families (TANF) workshop, District of Columbia
"If you have enough money to be able to buy drugs, then you don't need the public assistance," Colorado Rep. Jerry Sonnenberg told the Associated Press in March after sponsoring a welfare drug testing bill. "I don't want tax dollars spent on drugs."

"The message of this bill is simple: Oklahomans should not have their taxes used to fund illegal drug activity,” said state Rep. Guy Liebmann (R-Oklahoma City) in a statement on the passage of his welfare drug testing bill in the state House. "Benefit payments that have been wasted on drug abusers will be available for the truly needy as a result of this bill, and addicts will be incentivized to get treatment."

Liebmann also struck another frequently-hit note -- a moral claim that such bills were necessary even if they didn't save taxpayer dollars. "Even if it didn't save a dime, this legislation would be worth enacting based on principle," he said. "Law-abiding citizens should not have their tax payments used to fund illegal activity that puts us all in danger."

Such rhetoric has sounded in statehouses across the land, with bills for mandatory, suspicionless drug testing of people seeking public benefits introduced in almost half the states, even passing a couple -- Florida last year led the way (and this year passed a law mandating drug tests for state employees), and now Georgia this month has followed suit. West Virginia's governor has also instituted drug testing for enrollees in the state's job training program. But the most interesting trend emerging is how difficult it is to actually get them passed.

While Georgia legislators managed to get a bill through, bills have already been defeated in nine states so far this year -- Alabama Hawaii, Iowa, Kentucky, Mississippi, South Dakota, West Virginia, Virginia, and Wyoming -- and a number of others are either dead in the water or running out of time as legislative session clocks tick down.

The states where welfare drug test bills have not yet died include Colorado (House Bill 2012-1046) , Illinois (House Bill 5364), Indiana (House Bill 1007), Kansas (House Bill 2686), Oklahoma (House Bill 2388), Ohio (Senate Bill 69) South Carolina (House Bill 4358), and Tennessee (House Bill 2725), while a "reasonable suspicion" bill is still alive in Minnesota (Senate File 1535). Bills targeting unemployment benefits are still alive in Arizona (Senate Bill 1495) and Michigan (House Bill 5412), while one aimed at Medicaid recipients is still alive in South Carolina (House Bill 4458).

The stumbling blocks for passage are threefold: First, there are serious reservations about the constitutionality of such bills. While the Supreme Court has not ruled directly on the subject of requiring drug tests of public benefits recipients, it has held that forcing someone to submit to a drug test is a search under the meaning of the Fourth Amendment and thus requires either a search warrant or probable cause. The high court has carved out only limited exceptions to this general rule, including people in public safety-sensitive positions (airline pilots, truck drivers), members of law enforcement engaged in drug-related work, and some high school students (those involved in athletics or extracurricular activities).

The only federal appeals court ruling on drug testing welfare recipients came out of Michigan a decade ago, and in that case, a divided panel found such testing unconstitutional. That case was not appealed by the state. In Florida, the welfare drug testing law passed by the Republican legislature and signed into law by Gov. Rick Scott (R), has been stopped in its tracks at least temporarily by a federal district judge who has hinted broadly she will ultimately find it unconstitutional. Civil libertarians in Georgia have vowed to challenge its law as soon as it goes into effect.

Democratic legislators across the country have used the fear of unconstitutionality as a potent argument against the drug testing bills. They have also raised the specter of legal fees reaching into the hundreds of thousands of dollars to try to defend such bills in the courts, and that leads to the second objection to public benefits drug testing bills: they will not save taxpayer dollars, but will instead waste them.

"It's absolutely ridiculous to cut people off from potential benefits, especially when we've found that people on welfare aren't using their money to feed addictions," said Morgan Fox, communications manager for the Marijuana Policy Project. "In Florida, when they enacted their program, very few people tested positive. It ends up costing the state money to drug test."

Fox was referring to findings reported last week that in the four months last year that Florida's welfare drug testing law was in effect, only 2.6% of applicants failed the drug test and fewer than 1% canceled the test. With the state reimbursing those who took and passed a drug test, the program was a net loser for the state, costing it an estimated $45,000 during that four-month period.

The Florida findings are similar to the findings of an earlier Florida pilot program for welfare drug testing and the short-lived Michigan program, both of which reported very low rates of positive drug tests among their subject populations.

drug testing lab
While it appears that most public benefits drug testing bills being considered would be at best a wash when it comes to spending or saving taxpayer dollars, one unemployment drug testing bill, Senate Bill 1495 in Arizona, is likely to be doomed because it will trigger the withholding of federal tax benefits for business, costing Arizona businesses millions of dollars. That Republican-sponsored bill is now stalled in the House, and some normally staunch allies of the GOP are in the opposition camp.

"Arizona is moving forward with this bill that the Department of Labor says violates federal law," said Bill Piper, national affairs director for the Drug Policy Alliance. "The trade-off for this testing is a pretty steep tax hike on local businesses, and the Chamber of Commerce is opposing it because they care about taxes. We're hoping that the Chamber in other states will look at that as well."

A third stumbling block for public benefits drug testing bills is not legal or economic, but based on notions of justice and fairness. While Republican legislators talk about ensuring that taxpayer dollars aren't wasted on drug users, they seem decidedly disinterested in imposing drug testing burdens on recipients of taxpayer largesse who are not poor. They are not calling for the drug testing of beneficiaries of corporate tax breaks, for instance, and for the most part they are demonstrably uninterested in subjecting themselves to similar testing, although Democrats opponents of the bills have had fun and scored political points sponsoring amendments or bills to do just that in some states.

In Colorado, Democratic foes of a welfare drug testing bill submitted an amendment to drug test legislators and state officials complete with personalized urine specimen cups for House committee members.That amendment actually passed the committee, but was largely symbolic because even if the bill passed in the House, it was doomed in the Democratically-controlled state Senate.

Instead of the powerful, the bills target the most downtrodden and disadvantaged -- the poor, the sick, the jobless -- in the guise of helping them. They are part of a broader attack on the poor, some advocates said.

"Whether you're talking about attacks on welfare, abortion, or contraception, it's all connected," said Lynn Paltrow, executive director of National Advocates for Pregnant Women. "Depriving low-income people, predominantly women, of basic financial support is part of creating a second class status for all women. Women can't make healthy decisions about their reproductive lives if they don't have enough food to eat for themselves and their children," she argued.

For Paltrow, the push for drug testing the poor "has been part of a concerted effort to undermine the notion of the social contract" that is ideologically-driven and mean-spirited. "Whether it's poverty or pregnancy, you make every problem one having to do with individual responsibility, and then you create a justification for taking away money from people who need it."

It's part of a larger move to privatize what should be public welfare and services, Paltrow argued. "You're transferring money from poor people to companies that do drug testing," she said. "That's an important part of trickling up all our money to the fewer than 1%."

While Paltrow saw malign forces at work, Piper could identify no grand conspiracy.

"We couldn't find any think tanks currently pushing this or any other common denominator in all the states other than that this gets media attention," he said. "Some dumb legislator reads something in the newspaper and decides to do it in his state. We don't see any indication the drug testing industry is pushing this. If there's a conspiracy, it's a conspiracy of stupidity, that's all."

There is another fairness issue in play as well. The rhetoric surrounding the politics of drug testing the poor suggests that it is aimed at mothers strung out on heroin or meth-ravaged fathers, but the most common drug cited in the failed Florida drug tests was marijuana. That gets the goat of the MPP's Fox.

"Considering that occasionally using marijuana is not going to affect your ability to be a productive member of society and that it has a low addiction potential, marijuana consumers are being kind of discriminated against," he said. "People who, for ideological reasons, would rather drug test everyone than pay for the welfare of a few people, especially when it's marijuana, why, that's just patently ridiculous."

Republican legislators may have thought they had a no-brainer of an issue with mandating drug tests for public benefits recipients, but for the reasons mentioned above, the going has been tougher than they expected. That doesn't mean no more such bills are going to make it through the legislative process -- one is very close in Tennessee -- but it doesn't suggest that pandering to stereotypes and prejudice isn't as easy a sell as they thought.

Legislators in some states have also responded by more narrowly crafting drug testing bills in hopes of passing constitutional muster. A Utah bill now signed into law requires drug tests for welfare recipients upon suspicion, and more such bills are in the pipeline, although they face the same ticking clocks as the more broadly drawn drug testing bills.

While the Republican offensive has been blunted, the battle is not over.

"I remain concerned that more states will pass stupid drug testing legislation, but still optimistic the courts will strike them down. They're trying to make them suspicion-based and less random, but even that may or may not pass court scrutiny," said Piper.

"This recession can't end quickly enough," he sighed. "When the economy is bad, they need to find scapegoats. Still, this isn't passing in most states, and to get bills passed, it may be that they have to water them down to the point where they're just not that effective."

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