Drug Testing for Welfare Recipients: A Threat to Constitutional Rights By: Bridget Harris

Drug Testing for Welfare Recipients: A Threat to Constitutional Rights

By:

Bridget Harris

Drug testing for welfare recipients is not a recent controversy among individuals in America. In fact, substance abuse issues have been a major part of public assistance policy discussion since federal welfare reform in 1996.[1] Now, at least thirteen states have passed legislation in favor of drug testing or screening for public assistance applicants (Alabama, Arkansas, Arizona, Florida, Georgia, Kansas, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, Tennessee and Utah).[2] However, state test results have proved that “far fewer people on services are using drugs than their better-off counterparts.”[3] In 2013 the court in Lebron v. Secretary, Florida Department of Children and Families, ruled that drug testing for welfare recipients is unconstitutional under the Fourth Amendment which protects the rights of individuals “to be secure in their persons, houses, papers and effects, against unreasonable searches and seisures.”[4] There is no dispute as to whether government-mandated drug testing is constituted as a “search” within the meaning of the Fourth Amendment; thus, I must agree with the court in Lebron. Additionally, drug testing for welfare recipients has a detrimental effect on women in the African American community and further stigmatizes all individuals in need, drug user, or not.

In August of 1996, Congress proposed plans to identify and sanction those welfare recipients who currently use or are former drug users – assisting with the current war on drugs. Section 902 of Title 9 of the Personal Responsibility and Work Opportunities Reconciliation Act of 1996 (PRA) grants this negative power to the states.[5] Title 9 allows states to begin “drug testing welfare recipients and sanctioning those who test positive.”[6] Section 902 provides that “states shall not be prohibited by the Federal Government from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances.”[7]

However, many proposals for legislation requiring drug tests as a condition of eligibility for public assistance programs have not been implemented because the legislation was focused on “suspicionless” or “random” drug testing.[8] This method is at odds with a 2003 Michigan Court of Appeals case. The court in Marchwinski v. Howard held that “subjecting every welfare applicant in Michigan to a drug test without reason to believe that drugs were being used, was unconstitutional.”[9] The court found that “where public safety is not genuinely in jeopardy, the Fourth Amendment precludes a suspicionless search.” [10]

While some states argue that the public interest is to ensure that public moneys are not being spent in ways that will endanger the public, and to fight the war on drugs, this method of denying public assistance ceases to address the issue. Proponents of the bills claim that states will be able to save money by eliminating drug users; thus, spending will be reduced on these benefits. However, the thirteen states that have already implemented such programs have not seen such results.

First, states are spending hundreds of thousands of dollars to implement testing. Across the board, this money is not being used economically, effectively or efficiently. Studies show that these tests are eliminating very few drug users. The national drug use rate is 9.4 percent; however, in these states the rate of positive drug tests to total welfare applicants ranges from 0.002 percent to 8.3 percent, but all except one state has a rate below 1 percent.[11] Collectively, these states have spent nearly $1 million on this failing effort to eliminate drug users from seeking assistance.[12]

Second, public policy, as well as a true understanding of drug use, further reject legislation that allows states to drug test welfare recipients. While the goal of these states is to force drug abusers to seek treatment in order to receive assistance for themselves and their families, this goal is not being met. The international community widely recognizes “that in order for treatment to actually work it must be available when the user is ready to commit him or herself to it.”[13] Forcing welfare recipients to be tested for drugs, then forcing the very few that fail the test to seek substance abuse assistance in order to receive benefits, is not effective. If individuals are forced to seek help in order to receive benefits, the drug user is not ready to commit him or herself to receiving help, but instead is faced with a life or death situation. Thus, the user is forced to receive help to survive. If the goal of states with such legislation is to merely eliminate those who choose to use illegal substances, strictly enforcing such legislation will obtain this goal.[14] However, if the goal is to rehabilitate those individuals subject to substance abuse, the focus should not be drug tests for welfare recipients, but the expansion of existing drug abuse programs and treatment facilities.[15]

Additionally, there is a negative effect on community members who need welfare assistance. The war on drugs is a war against low-income individuals as well as women. Such legislation implicitly targets women (with suspicion tied to receipt of services for children) and people of color.[16] It is evident that the impact of federal sentencing guidelines and drug law enforcement on African Americans is grossly disproportionate, and continuing to implement legislation that encourages such efforts will merely multiply existent racism.[17] For the foregoing reasons, as well as the unreasonable and suspicionless searches, drug testing for welfare recipients is unconstitutional under the Fourth Amendment of the U.S. Constitution, and should be deemed as so.

[1] National Conference of State Legislatures: Drug Testing for Welfare Recipients and Public Assistance (July 27, 2015), http://www.ncsl.org/research/human-services/drug-testing-and-public-assistance.aspx.

[2] Id.

[3] Darlena Cunha, Why Drug Testing Welfare Recipients Is A Waste of Taxpayer Money (Aug. 15, 2014).  http://time.com/3117361/welfare-recipients-drug-testing/

[4] U.S. Const. amend. IV.

[5] Corinne Carey, Crafting a Challenge to the Practice of Drug Testing Welfare Recipients: Federal Welfare Reform and State Response as the Most Recent Chapter in the War on Drugs, 46 Buffalo L. Rev. 281. (1998).

[6] Id.

 

[7] Id.

[8] National Conference of State Legislatures: Drug Testing for Welfare Recipients and Public Assistance (July 27, 2015), http://www.ncsl.org/research/human-services/drug-testing-and-public-assistance.aspx.

[9] Marchwinski v. Howard 60 F. App’x 601 (6th Cir. 2003).

[10] Id. at 334.

[11] Nicole Flatow, Federal Court Invalidates Drug Testing of Welfare Applicants (Jan. 2, 2014), http://thinkprogress.org/economy/2015/02/26/3624447/tanf-drug-testing-states/.

[12] Id.

[13] Corinne Carey, Crafting a Challenge to the Practice of Drug Testing Welfare Recipients: Federal Welfare Reform and State Response as the Most Recent Chapter in the War on Drugs, 46 Buffalo L. Rev. 281. (1998).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

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