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

Drug Testing for Welfare Recipients: A Threat to Constitutional Rights


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),

[2] Id.

[3] Darlena Cunha, Why Drug Testing Welfare Recipients Is A Waste of Taxpayer Money (Aug. 15, 2014).

[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),

[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),

[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.

#BlackLivesMatter and #BanTheBox: The Negative Impact of Civil Disobedience on Job Prospects and How to Correct It* By Carly Calhoun

Carly Calhoun


#BlackLivesMatter and #BanTheBox: The Negative Impact of Civil Disobedience on Job Prospects and How to Correct It*

In the wake of high profile police shootings of unarmed black men, women, and children, the U.S. is in the midst of what some are calling a new Civil Rights Movement, otherwise known as the Black Lives Matter Movement.[1] Not unlike the Civil Rights Movement of the 1960s, police are arresting people for non-violent civil disobedience,[2] where charges are generally for disorderly conduct or obstruction.[3] Most of us look at those arrested in the 1960s as heroes working for equality, and many now look at Black Lives Matter in the same light. What may not be taken into account is how these arrests and criminal convictions will negatively affect the protestors’ future job prospects. However, there is hope in the Ban the Box Movement.

The Ban the Box Movement urges employers to eliminate “the box” asking about criminal history on job application forms in an effort to eliminate discrimination based on arrest or conviction records.[4] According to the National Employment Law Project (NELP), “there are an estimated 70 million U.S. adults with arrests or convictions that often make it much harder to find work.”[5] The stigma attached to an arrest or conviction either leads employers to toss out applications on which people honestly told of their criminal history, or it discourages prospective employees with a criminal history from applying to jobs, suspecting they will not get hired or even called back.[6] In effect, employers with “the box” arbitrarily decline to even interview qualified and willing workers. And prospective employees, thus discouraged, tend to recidivate.[7]

While Title VII of the Civil Rights Act does not include those with a criminal history as a protected class for hiring decisions and employment,[8] the EEOC recognizes that criminal background may be an aggravating factor for discrimination when combined with biases about an applicant’s race or other protected class status.[9] And employers may be liable for disparate impact claims when “evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.”[10] Because minorities are arrested at disproportionate rates compared to whites, employers’ blanket exclusions in hiring those with arrests or convictions disproportionately impact African Americans, Hispanics, and Latinos,[11] thus potentially violating Title VII.

These statistics show that those arrested while working in the Black Lives Matter Movement—predominantly young millennials of color[12]—will likely face more discrimination in employment by participating in protests aimed at ending discrimination in other areas. Some seem to view this barrier to employment as a just consequence of civil disobedience. For instance, one psychologist said about Occupy Wall Street demonstrators, “Protesters’ traffic blocking showed . . . bullying behavior displayed by sociopaths. [] Employers avoid hiring job applicants who feel thrilled harming and bullying people.”[13] However, many, if not all, great leaps in civil rights in the past two centuries involved some form of civil disobedience.[14] While one makes sacrifices for a great cause, to sacrifice the ability to sustain oneself through legitimate employment once the dust has settled should not be one of them.

While the Ban the Box movement is aimed at reducing stigma and providing true rehabilitation and restoration of civil rights to those exiting prison,[15] it has the greater impact of allowing people to stand up for their rights without fear of negative lifelong repercussions. The chances of widespread adoption of the elimination of “the box” look good as major employers like Target, Wal-Mart, and more recently the conservative party backers Koch Industries have stopped asking potential employees about their criminal history.[16] With the addition of 16 states and over 100 cities that have passed measures banning “the box” on public (and sometimes even private) sector job applications,[17] there is clear bi-partisan support for this type of criminal justice reform. The federal government would be wise to pass similar measures, therefore aiding our economy by strengthening the workforce and reducing the rate of recidivism nationwide. The added benefit will be to lessen discouragement of people from participating in our nation’s living history of non-violent civil disobedience to reach societal ideals.

* This inspiration and idea for this blog post came from the Facebook post of Robert Reich, Chancellor’s Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies, available at (last visited Sept. 25, 2015).

[1] See Brooke Obie, Op-Ed: Radical Black Christians in the New Civil Rights Movement, NBC News (Aug. 29, 2015, 10:45 PM ),, and Gene Demby, The Birth of a New Civil Rights Movement, Politico (Dec. 31, 2014),

[2] See, e.g., Taylor Wafford, Police Arrest Dozens of Black Lives Matter Protesters, Body Slam Man in Ferguson, Newsweek (Aug. 10, 2015, 9:29 PM),

[3] Bill Quigley, Legal Briefing for People Considering Non-Violent Civil Disobedience, Ctr. for Const. Rts. 2, available at (last visited Sept. 25, 2015).

[4] All of Us or None, (last visited Sept. 25, 2015).

[5] Nat’l Emp. Law Project, Fact Sheet: “Ban the Box” is a Fair Chance for Workers with Records, 1 (July 2015),

[6] “Research affirms that a criminal record reduces the likelihood of a job callback or offer by nearly 50%.” Id, citing Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 5, 937, 955 (March 2003), available at

[7] Id.

[8] 42 U.S.C. §2000e-2 (2012) (prohibiting discrimination in hiring based on “race, color, religion, sex, or national origin”).

[9] U.S. Equal Emp. Opportunity Comm’n, EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (April 25, 2012), available at

[10] Id.

[11] Id.

[12] See, e.g., Khury Petersen-Smith, Black Lives Matter: A New Movement Takes Shape, 96 Int’l Socialist Rev. (Spring 2015),

[13] Michael Mercer, Ph.D., Occupy Wall Street Protesters Destroy Their Job Hunting Prospects, Hcareers, (last visited Sept. 25, 2015).

[14] See, e.g., Libr. of Cong., Tactics and Techniques of the National Woman’s Party Suffrage Campaign, available at (last visited Sept. 25, 2015) and The Tex. Pol. Project, Civil Disobedience and Non-Violent Action, (last visited Sept. 25, 2015) (highlighting the tactics of the Boston Tea Party and abolitionists, among others).

[15] See supra note 4.

[16] Marianne Levine, Koch Industries to Stop Asking About Job Candidates’ Criminal History, Politico (April 27, 2015, 1:37 PM)

[17] Id.

Taking a Hard Look at Turning a Blind Eye: Sanctuary Cities in the U.S. By Marty Bormolini

Taking a Hard Look at Turning a Blind Eye: Sanctuary Cities in the U.S.

By Marty Bormolini

Illegal immigration has been a hot-button political issue in the U.S. for decades, but a recent homicide in San Francisco has focused the national discussion on a narrower issue: immigration sanctuaries. In July, Francisco Sanchez, an undocumented Mexican immigrant, allegedly fired the bullet that killed Kathryn Steinle, a 32-year-old San Francisco resident.[1] Sanchez had previously been deported five times and had a history of non-violent criminal offenses, completing a prison sentence for a drug offense in April.[2] However, in compliance with provisions in San Francisco’s immigration code[3] enacted in 1989 and the Due Process for All ordinance[4] enacted in 2013, city officials did not comply with a federal request to provide notice of his release to immigration agents.[5]

While the killing of Kathryn Steinle has led to heated arguments over whether city and/or federal officials were doing their jobs correctly,[6] it has also opened to door to a national debate about the general existence of so-called “sanctuary cities.”[7] San Francisco is one of over a hundred city, county, and even state governments with laws, policies, resolutions, orders and/or regulations explicitly forbidding or limiting cooperation with federal immigration agencies in their attempts to identify undocumented immigrants.[8] Some of the first sanctuary laws in the U.S. were enacted in the 1980s with the intention of protecting refugees who had failed to achieve federal refugee status.[9] However specific their initial goals, many of these laws have lasted decades and drawn new supporters over time. San Francisco Sheriff Ross Mirkarimi, for instance, argues that sanctuary policies serve to strengthen local governments’ relationships with their immigrant populations.[10]

Sanctuary laws raise some interesting constitutional questions because of their inherent conflict between federal and local law.[11] New York City challenged a federal statute which it believed violated the 10th amendment of the U.S. Constitution.[12] The Second Circuit rejected the city’s argument, specifically reasoning that it was acceptable for Congress to “prohibit state and local governmental entities or officials… from directly restricting the voluntary exchange of immigration information with the INS.”[13] In California, a taxpayer challenged a Los Angeles sanctuary law, arguing that it was invalid in light of a federal statute.[14] The California Court of Appeals upheld the sanctuary law, finding it neither facially in conflict nor pre-empted.[15] While these cases and others present rather mixed holdings regarding complex statutory issues, one scholar has argued that they ultimately lead to very strong constitutional arguments in favor of most sanctuary laws.[16]

The debate over the general existence of sanctuary cities raises interesting questions, but it may still be a good idea to look closer at the specific connection between Kathryn Steinle’s death and the national immigration debate. It is fairly likely that San Francisco’s sanctuary laws allowed Francisco Sanchez to remain in the city until the day of Kathryn Steinle’s shooting, and for the sake of argument we could assume that the law did exactly that. He had also been repeatedly deported and committed various non-violent crimes. From one point of view, it may seem ridiculous to allow someone like Mr. Sanchez to remain in the country despite so many “second chances” (and it’s worth mentioning that any particular sanctuary law could be written so that repeat offenders like Mr. Sanchez would not be protected). But at the same time, does any of this history indicate that anyone should have suspected Mr. Sanchez of being a particular risk for violent crimes? Or, more generally, should we expect illegal immigrants to be more violent than any other resident?

The crime rate among illegal immigrants relative to other Americans has been debated for a long time, and can be difficult to pin down.[17] It is obvious that there are legitimate government interests in preventing unrestricted entry to the United States. If, in fact, illegal immigrants are generally committing more crimes than others, this would probably be another of the government’s interests in identifying them. But it also seems fairly obvious that communities have legitimate interests in making their immigrant populations feel like they are actually a part of the community. The debate over the existence of sanctuary cities must take both of these sides into account with a goal of finding what must be a delicate balance. Is the Kathryn Steinle case truly a good starting point for that debate?

The debate over sanctuary cities has become nationally relevant largely out of a sense of moral outrage. But what is the actual source of that moral outrage? To put it bluntly: are Americans angry that sanctuary laws (which have been in place for decades in hundreds of communities) played a part in a murder, or are Americans first and foremost angry that an illegal immigrant murdered an American? I believe that the latter is very likely the answer for many of the people participating in this debate.

Ultimately, sanctuary cities have now become a political target. Reasonable people are surely at least partly angry at the feeling that local governments may be helping illegal immigrants who are bad actors. But if we honestly want to discuss them on a national level and reconsider these laws, it is crucial that we acknowledge their long history and widespread use and attempt to seriously measure all of their impacts before we make kneejerk reactions.

[1] Vic Lee and Sergio Quintana, San Francisco Murder Suspect Sparks Immigration Debate, ABC 7 News (Jul. 6, 2015),

[2] Id.

[3] S.F. Admin Code 12H (1989),

[4] S.F. Ordinance 204-13 (Sept. 24, 2013),

[5] Lee and Quintana, supra note 1.

[6] Caroyln Tyler and Cornell Barnard, Document Shows San Francisco Sheriff Asked Feds for Pier 14 Suspect, ABC 7 News (Jul. 8, 2015),

[7] Lee and Quintana, supra note 1.

[8] See for a map of various U.S. cities, counties and states with sanctuary laws/rules/etc.

[9] See Michele Altemus, “The Sanctuary Movement,” 9 Whittier L. Rev. 683 (1988) for a discussion on the sanctuary movement.

[10] Michael Pearson, What’s a ‘sanctuary city,’ and why should you care?, CNN (Jul. 8, 2015),

[11] See Joseph Huston, “Sanctuary Cities: A Constitutional Primer,” 6 Dartmouth L. J. 211 (2008).

[12] City of New York v. United States, 179 F.3d 29 (2d Cir. 1999).

[13] Id. at 35.

[14] Sturgeon v. Bratton, 95 Cal. Reptr. 3d 718 (Ct. App. 2009).

[15] Id.

[16] See Bill Ong Hing, “Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy,” 2 UC Irvine L. Rev. 247 (2012).

[17] See Jason Riley, The Mythical Connection Between Immigrants and Crime, The Wall Street Journal (Jul. 14, 2015),; but see Steven Camarota and Jessica Vaughan, Immigration and Crime, Center for Immigration Studies (Nov. 2009),

Reentry Program: The Solution to Recidivism by Siqin Wang

Reentry Program: the Solution to Recidivism?

The problem posed by inmates being released from prison has been a continuing concern throughout the United States. The explosion in incarceration over the last two decades directly causes the situation that we are facing today— more released inmates than the rehabilitation programs can ever hope to be able to handle.[1] The largest study of recidivism conducted by the Bureau of Justice Statistics showed that an estimated two-thirds (68 percent) of 405,000 prisoners released in 30 states in 2005 were arrested for a new crime within three years of release from prison.[2] Three-quarters (77 percent) were arrested within five years.[3] The ex-offender population has tended to recidivate due in part to an unavailability of economic and social supports.[4] Concerns about stopping the “cycle of crime” leads us to consider addressing this issue through reentry and devise plans to successfully reintegration of ex-offenders into society.[5]

Given this incredibly high recidivism rate, successful prisoner reentry is of the utmost importance in unraveling this crisis.[6] The re-entry program could provide training course including educational and vocational training, employment, mentoring, counseling, mental and physical health care, substance abuse treatment, faith-based services, legal services, and housing assistance.[7] After realizing the importance of re-entry program to the ex-offenders rehabilitation and also community’s safety, Oregon lawmakers in 2013 set aside $58 million for counties to provide services that keep people from returning to jail or prison.[8] Recently, Washington County announced that it will expand services the help ex-offender adjust to life outside jail or prison.[9] The agency promised they would provide safe housing which is desperately needed for released prisoners.[10]  The program will also help with placing former inmates into jobs that pay slightly more than Oregon’s current minimum wage of $9.25 per hour — and extra help to ensure that most of them stay employed.[11]

Among those rehabilitation programs, the vocational training programs are especially important because of their potential to bring considerable amount of skilled labor to the workforce. Local companies and corporations should be encouraged to invest a certain amount of their net benefit in programs which will provide the inmates with certain skills that the corporations consider valuable.[12]  Employment will help ease the problem of recidivism for lack of economic support.[13]  This system of cooperation between re-entry program and local companies in Alabama will substantially benefit the prisoners released from jail or prison as well as local manufacturers. In Alabama, manufacturing plants are expanding, and new suppliers are establishing operations and the industry’s workforce is growing across the state.[14] For example, Toyota’s expansion at its Huntsville engine plant created 125 jobs, pushing the total workforce there to 1,200.[15] Other manufacturers like Honda and Hyundai are also adding jobs and taking steps to boost output at their assembly lines.[16] With the boost of the job market, the inmates with vocational trainings are highly needed for the manufacture industry. Trained to be able to conduct job in these plants, those ex-offenders are the answer to the lack of labor force due to the competition in business. The re-entry program will not only benefit those released prisoners to start a new life with a stable job, but also boost the local economy.

[1] U.S. state and federal correctional facilities held an estimated 1,574,700 prisoners on December 31, 2013, an increase of 4,300 prisoners from year-end 2012. E. Ann Carson, National Prisoner Statistics (NPS) Program, Bureau of Justice Special Report: Prisoners In 2013, at 2 (1989), available at

[2] The Bureau of Justice Statistics (BJS) announced the Data on recidivism, available at

[3] Id.

[4] Anthony C. Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry, 45 B.C. L. Rev. 255, 259 (2004)

[5] Id.

[6] Eumi K. Lee, The Centerpiece to Real Reform? Political, Legal, and Social Barriers to Reentry in California, 7 Hastings Race & Poverty L. J. 243, 244 (2010)

[7] Daniel M. Fetsco, Reentry Courts: An Emerging Use of Judicial Resources in the Struggle to Reduce the Recidivism of Released Offenders, 13 Wyo. L. Rev. 591, 600 (2013).

[8] Id.

[9] Peter Wong, Washington County re-entry program set to get staffing boost, Portland Tribune, (Sept. 10 2015),

[10] Id.

[11] Id.

[12] Corrections Corp. Of America, CCH Federal Securities Law Reporter (Feb. 2, 2015), 2015 WL 783296.

[13] See id.

[14] Alabama’s Auto Manufacturing Industry Adding Investment, Jobs And Vehicles After Record Year, Alabama Department of Commerce, available at

[15] Id.

[16] Id.

Behind Bars of Gold: Prisoners and Profits By Robert Carter

Behind Bars of Gold: Prisoners and Profits


Robert Carter

A debate over private prisons rages in America. Just this week, that debate came back to the forefront when Vermont senator and Democratic presidential hopeful, Bernie Sanders, published a press release calling for the end of private prisons, and promising to immediately introduce legislation to end all federal, state and local contracts for privately run prisons within two years.[1] Sanders argued that “decisions regarding criminal justice and public safety are, without a doubt, the responsibility of the citizens of our country and not the investors in private corporations.”[2] Sanders also cited concerns with profiting from incarceration, dehumanizing conditions in for-profit prisons, lack of oversight, mandatory quotas in immigrant detention facilities, and overcharging of prisoners for banking and other services.[3] On the other side, proponents of private prisons argue that private prisons are a critical low-cost solution to a prison overpopulation crisis.[4]

Private prisons as we know them today arose out of the war on drugs and tough-on-crime laws of the 1970s and 80s.[5] Strict drug laws and harsh mandatory minimum sentences contributed to a 334% increase in the American prison population between 1980 and 2003.[6] Between 1971 and 2008, the American prison population increased tenfold.[7] The massive growth in prison populations rapidly led to severe prison overcrowding.[8] By 1988, the prison systems in 39 states, the District of Columbia and two territories had been placed under federal court supervision due to substandard conditions resulting from severe overcrowding.[9] There simply were not enough prisons to incarcerate the flood of inmates generated by the legislative tough-on-crime push. Private prisons, promising lower-cost facilities and operation, were an attractive option for states and the federal government who were in desperate need of new prisons but operating under tight budget constraints.[10]  Contracting with private prison corporations alleviated the need for bonds, budget referenda or unpopular tax increases.[11] Consequently, the private prison industry enjoyed a booming period of growth throughout the 1990s. There were 3,100 inmates held in private prisons worldwide in 1980.[12] By 1999, the United States held 69,188 in ninety-four different private prisons.[13] Today, 130 private prisons with 157,000 beds rake in $3.3 billion in revenue a year.[14] One particularly disturbing area in which private prisons have exploded in just the last few years is undocumented immigrant detention. While for-profit prisons have grown to house 6% of state prisoners and 16% of federal prisoners, private prisons house nearly half of all immigrants detained by the federal government.[15]

Human rights activists have long been deeply concerned that a for-profit model incentivizes cost-cutting measures that detract from essential inmate services to maximize profits. Unfortunately, these concerns have proved to be well-founded. The daily operations of private prisons are more violent.[16] Private prison guards receive lower pay, fewer benefits and 35% fewer training hours than their public counterparts.[17] As a key cost-cutting provision, private prisons employ on average 15% fewer guards per inmate than their public counterparts.[18] The end result of these cuts is that private prisons experience nearly twice the number of assaults on inmates as public prisons.[19] Prisoners and their families are also charged exorbitant fees for basic services such as banking, paying fees as high as 45% to use their money.[20]

Perhaps the most concerning aspect of the private prison system is the perverse incentive that more inmates, more incarceration and longer sentences means more profits. The private prison industry benefits financially from strict sentencing laws and high recidivism rates, a fact of which the private prison industry is well aware.[21] In its 2014 annual report the Corrections Corporation of America, a major private prison corporation, wrote that relaxation of enforcement efforts or leniency in convictions or parole standards and sentencing practices were a threat to their profits.[22] The report was particularly concerned with legislation proposed in several states that would reduce minimum sentences for non-violent drug offenders.[23] The prison lobby has responded by lobbying against criminal law reform, to the tune of $25 million a year.[24] In one of the most appalling instances demonstrating the incentive to incarcerate, PA Child Care, a private facility, paid two Pennsylvania judges $2.6 million over five years to reject alternative punishments and sentence hundreds of teens to serve time in their facility.[25]

Private prisons benefit not only from harsh sentencing laws but from high recidivism rates as well. A for-profit prison has almost no incentive to rehabilitate inmates or provide educational of vocational training programs that do not decrease the cost of confinement.[26] As a result, for-profit prisons experience a significant increase in recidivism.[27]

Private prisons have transformed the American correctional landscape, but not for the better. The effects of transforming human capital into capital will be felt in the United States for decades to come in the form of mass incarceration and high recidivism rates. Inmates and society at large both suffer from a system that profits from keeping prisons filled. However, private prisons are ultimately just a symptom of the underlying problem of overcriminalization and harsh sentencing as an attempt to reduce crime. While ending private prison contracts could be a meaningful first step, the United States must address the fundamental underlying approach to criminal punishment that has resulted in the highest incarceration rate in the world.

[1] Sanders: Our Criminal Justice System is Broken, Ending Private Prisons is a Good First Step Forward, Bernie 2016 (Sept. 8, 2015),

[2] Id.

[3] Id.

[4] See, e.g., Peter J. Duitsman, The Private Prison Experiment: A Private Sector Solution to Prison Overcrowding, 76 N.C. L. Rev 2209, 2213 (1998); III. A Tale of Two Systems: Cost, Quality, and Accountability in Private Prisons, 115 Harv. L. Rev. 1868, 1891 (2002).

[5] Stephen Raher, The Business of Punishing: Impediments to Accountability in the Private Corrections Industry, 13 Rich. J. L. & Pub. Int. 209, 215 (2010).

[6] Id.

[7]  Lucas Anderson, Kicking the National Habit: The Legal and Policy Arguments for Abolishing Private Prison Contracts, 39 Pub. Cont. L.J. 113, 114 (2009).

[8] Raher, supra note 5 at 215.

[9] Id.

[10] Anderson, supra note 7 at 115.

[11] Id.

[12] Patrice A. Fulcher, Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex, 51 Washburn L.J. 589, 598 (2012).

[13] Id.

[14] Michael Cohen, How For-Profit Prisons Have Become the Biggest Lobby No One is Talking About, The Washington Post (Apr. 28, 2015),

[15] Banking on Bondage: Private Prisons and Mass Incarceration, American Civil Liberties Union (modified Sept. 11, 2015),

[16] Anderson, supra note 7 at 125.

[17] Id.

[18] Id.

[19] Curtis R. Blakely, Private and Public Sector Prisons—A Comparison of Select Characteristics, 68 Fed. Probation 27, 29 (2004).

[20] Daniel Wagner, Profiting from Prisoners — Prison Bankers Cash in on Captive Customers, The Center for Public Integrity (Sept. 30, 2014),

[21] Cohen, supra note 14.

[22] Id.

[23] Id.

[24] Id.

[25] Anderson, supra note 7 at 128.

[26] Patrick Beyer and David E. Pozen, The Effectiveness of Juvenile Correctional Facilities: Public versus Private Management, 48 J.L. & Econ. 549, 549 (2005).

[27] Id.

Holy Evasion of the Tax Man by Shannon Auvil

Decades ago, the Supreme Court upheld tax exemptions for churches.[1] The New York law in Walz exempted “real or personal property used exclusively for religious, educational, or charitable purposes as defined by law and owned by any nonprofit corporation or association organized or conducted exclusively for one or more of such purposes.”[2] Laws similar to it exist in almost every state. Chief Justice Burger defended the exemption by equating it to the tax exemption enjoyed by nonprofit organizations.[3] Justice Douglas dissented on the grounds that a tax exemption for churches supports the establishment of a religion, thus violating the Establishment Clause of the First Amendment.[4] I must agree with Justice Douglas.

Currently, the Internal Revenue Service treats churches rather specially. First, the IRS automatically grants exemption to churches, while the nonprofit organizations that Chief Justice Berger likened churches to in Walz must file for exemption.[5] Second, the IRS does not compel churches to file a 990 form.[6] Tax-exempt 501(c)(3) charities are required to file 990 forms, which account for finances. The 990 filing requirement checks charities and guarantees that no individual profits from funds raised and that charity money raised goes to nonprofit purposes. If a charity appears to be a moneymaking machine rather than a true charity, the charity must pay taxes.

The tax regime covering churches is in dire need of reform. Levying a property tax on churches is a fair and constitutionally minded alternative to church taxes enacted in European countries that tax the very act of attending church. Opponents on each side of the property tax debate claim “to exempt church property while taxing that of other nonreligious groups appears to violate the ‘no special benefit’ principle of the [E]stablishment [C]lause. To tax church property while exempting that of other nonprofit groups appears to violate the ‘no special burden’ principle of the [F]ree [E]xercise [C]lause.”[7] However, taxes on church property and IRS regulation reform are fair solutions to the dilemma for the following reasons.

First, depriving churches of their automatic tax-exempt status would not deprive them of tax-exempt state entirely. It would simply require them to apply for an exemption like charities. The current practice of automatic exemption from taxes is inherently suspect – it invites abuse.[8] If churches had to file a 990 form, the most extravagant and profitable mega churches might, and should, lose their tax-exempt status. It would improve accountability of churches, which is certainly a necessity in light of increased political involvement by churches in recent campaigns. To truly maintain separation of church and state, the state should hold the church accountable as a so-called charitable organization. Otherwise, churches have free reign to masquerade as houses of worship while bleeding congregants’ wallets dry, funding political groups, or acting as vehicles for political activism. Such unaccountable influence over the political process is toxic. If churches were taxed, they may seize the opportunity to become more openly politically active, but accountability would accompany that new opportunity.

Second, exempting churches from property taxes demonstrates a special benefit to churches, not a burden. When a small church of 50 congregants and a small parking lot enjoys its tax exemption, it clearly benefits. However, when a mega church of 16,000 square feet and acres of parking takes advantage of its unquestioned tax exemption, its benefit is exponentially larger than the former’s. Thus, the property exemption helps large, powerful groups on a bigger scale than small, emerging religions, and allows them to get away with gaming the system. The result is unfair and clearly benefits and enables the most prevalent religions. As articulated by Justice Black,

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’[9]

It is problematic for churches to be tax-exempt without question because doing so “aid[s] all religions, or prefer[s] one religion over another,” by exempting all religions or only those deemed legitimate enough to be recognized by the government.[10]

Third, tax subsidies for churches do not dissipate into the air. Private individuals and businesses absorb the subsidies lost by exemption. Consider the previously mentioned mega churches. If you live near a mega church, your taxes may spike to compensate for the loss of property taxes suffered by the municipality for exempting the church. Churches own billions in real property – but they pay nothing in taxes for it, so the general public must.[11] This costs taxpayers upward of $70 billion per year.[12]

Fourth, tax-exempt status is a privilege that churches must earn, not simply be granted. While assuming that churches participate in charitable work is a nice thought, it might not be entirely true of every church. Abuses of tax-exempt status have been recorded and are difficult to solve without any check on church functions. Senator Chuck Grassley (R-IA), ranking member of the U.S. Senate Committee on Finance, released a memo in 2011 noting the lack of transparency among large, media-based religious organizations in America led by multimillionaire ministers. The aim of his investigation, which began in 2007, was to “improve accountability and good governance so tax-exempt groups maintain public confidence in their operations.”[13] Grassley’s investigation involved six tax-exempt ministries, each considered nonprofits worth tens of millions of dollars. Only two ministries participated fully in the report; the others refused to share information or limited the information they shared.[14] Those two ministries – Joyce Meyer Ministries and the World Healing Center Church – were commended for their progresses to reform church finances.[15] Grassley’s investigation ultimately found no wrongdoing and preferred “‘self-correction’ by churches and religious groups [over] legislative or regulatory solutions.”[16] Despite this cop-out conclusion to a three-year investigation, Grassley’s memo comments “requiring churches to file an annual information return does not offend either the Free Exercise Clause or the Establishment Clause.”[17] I find this highly significant and difficult to argue against. Truly religious organizations, apparent equivalents to charities, would not be burdened by filing an information return like the 990 form. Instead, non-charitable organizations disguised as churches would deservedly lose their great financial advantage of tax exemption. Requiring an information return and taxing churches do not offend the Establishment Clause and in fact preserves it by treating each religious organization equally and withholding favor from any certain group.

Religious organizations should be required to pay property taxes and to file for tax-exempt status if they wish to be exempt. IRS regulations need to be reformed and revised to eliminate tax loopholes. If religious organizations are strictly charitable, nonprofit organizations – as they love to be portrayed – they should be held to the same standards as secular nonprofits and should not be given free passes simply for their churchly label.

[1] Walz v. Tax Comm’n of New York, 397 U.S. 664, 700 (1970).

[2] N.Y. Tax Law § 1 (McKinney 1939).

[3] Walz, 397 U.S. at 696.

[4] Id. at 701.

[5] Internal Revenue Service, Tax Guide for Churches & Religious Organizations (2012).

[6] Id.

[7] John Witte, Jr., “Tax Exemption of Church Property: Historical Anomaly or Valid Constitutional Practice?,” 64 S. Cal. L. Rev. 363, 414–15 (1991).

[8] Mathew Encino, “Holy Profits: How Federal Law Allows for the Abuse of the Church Tax-Exempt Status,” 14 Hous. Bus. & Tax L. J. 78, 87-88 (2014).

[9] Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 15-16 (1947).

[10] Id.

[11] Dylan Matthews, You give religions more than $82.5 billion a year, Washington Post (Aug. 22, 2013),

[12] Id.

[13] U.S. Senate Committee on Finance, “Grassley Releases Review of Tax Issues Raised by Media-based Ministries,” (Jan. 6, 2011),

[14] Memorandum from Theresa Pattara & Sean Barnett, staff members of the U.S. Senate Committee on Finance, to Senator Chuck Grassley (Jan. 6, 2011).

[15] Id.

[16] Laurie Goodstein, Tax-Exempt Ministries Avoid New Regulation, N.Y. Times (Jan. 7, 2011),

[17] Pattara & Barnett, supra note 14.

“F” for Felon: The New Scarlet Letter by Hannah Hicks

“F” for Felon: The New Scarlet Letter

Hannah Hicks




In most states, the use of illegal drugs by a woman during her pregnancy is a matter addressed by child protective services.[1] However, in Alabama women can be criminally prosecuted for drug use during pregnancy. This post will provide a brief introduction to Alabama’s chemical endangerment statute and argue that public policy weighs against the prosecution of women for drug use during pregnancy.

Alabama’s Chemical Endangerment Law

Ala. § 26-15-3.2 makes chemical endangerment of a child a felony.[2] Under the law, knowingly or recklessly allowing a child to ingest, inhale, or come into contact with a controlled substance, chemical substance or drug paraphernalia is a class C felony.[3] If a child sustains injury as a result of exposure, the offense is a class B felony.[4] If death results, the offense is a class A felony and carries a minimum 10-year sentence.[5]

Alabama’s chemical endangerment law was enacted to protect children from exposure to meth labs.[6] However, Alabama prosecutors have used the law to bring dozens of cases against women who used drugs during pregnancy.[7] This has led The New York Times to describe Alabama as “the national capital for prosecuting women on behalf of their newborn children.”[8]

The two strongest arguments in favor of the criminal prosecution of women who use drugs during pregnancy are that these laws have a strong deterrent effect[9] and that these prosecutions link pregnant women to drug treatment programs.[10] These arguments ultimately fail under the weight of the counter-arguments presented below.


Policy Arguments Against Criminalization of Drug Use During Pregnancy


              Barriers to Treatment


Women fearing prosecution under chemical endangerment laws may avoid seeking prenatal care or drug treatment if they believe that medical providers will turn them over to law enforcement. Additionally, one defense attorney in Alabama is aware of one woman facing prosecution under the chemical endangerment statute “who drove to Georgia when she went into labor and another who gave birth to a three-pound baby in a bathtub at home.”[11]

These women’s concerns are well grounded. Some jurisdictions have experimented with the policy of doctor reporting of pregnant women suspected of drug use.[12] Although the U.S. Supreme Court in Ferguson v. City of Charleston decided that hospital testing for the purpose of obtaining evidence of criminal drug use by a pregnant woman is an unreasonable search when the woman has not given her consent,[13] the holding of the case was so narrow that it leaves open the possibility that medical records could be turned over to authorities and used against pregnant women.[14]

For example, women who are addicted to “hard” drugs undergo serious withdrawal symptoms that often require medical intervention. Doctors sometimes prescribe small doses of methadone to wean users off of these drugs. There is nothing in the Alabama statute that would prevent prosecution of women undergoing this form of addiction treatment.[15]

The American Medical Association, American Academy of Pediatrics, and The American College of Obstetricians and Gynecologists have voiced their concern that prosecuting women for drug use during pregnancy “is irrational” because “it will result in greater harm to infants.”[16] These professional organizations argue that “fear of prosecution would not influence women to discontinue drug use early enough to significantly reduce harm to infants [and] women will be encouraged to avoid contact and communication with medical providers.”[17] Moreover, withdrawal effects might complicate pregnancies.[18]


              Unbridled Regulation of Pregnant Women

Another concern surrounding statutes like Alabama’s chemical endangerment statute is the looming possibility of extensive intrusion the lives of pregnant women. One critic states the concern as follows: “everyone talks about the personhood of the fetus, but what’s really at stake is the personhood of women.”[19] Some fear that the application of Alabama’s chemical endangerment law opens the door for state regulation of all aspects of a pregnant woman’s life. At least one critic has queried whether criminal prosecutions for the use of cigarettes and alcohol while pregnant are the next step.[20] Beyond that, what happens when the pregnant woman works at a job that exposes her to toxic chemicals or fails to follow her doctor’s bed rest orders because of other pressing responsibilities?[21]

Crushing Social Outcomes

Successful prosecution under Alabama’s chemical endangerment law delivers a devastating blow to women and their children. Not only does it result in temporary separation of the family during crucial years of child development, it also initiates a lifelong struggle under the scarlet letter “F” for felon. With the label “felon,” these women will face extreme difficulty securing employment. Additionally, they will not be able to receive government assistance, including food stamps and housing. With these insurmountable barriers, it is no surprise that women and children affected by these child endangerment prosecutions will succumb to the cycle of chronic poverty and criminal activity.


Other states are beginning to follow Alabama’s lead. In 2014, Tennessee enacted a law that allows for the prosecution of women who give birth to drug-dependent children.[22] Some women’s rights advocates argue that laws that allow for prosecution of drug use during pregnancy are one more weapon in pro-life advocates’ armory of  “fetal personhood” arguments.[23] If that is the case, more states with pro-life majorities are likely to begin adopting similar laws. However, these laws might not withstand constitutional challenge,[24] and as this post has argued, there are strong policy reasons to object to the recent shift toward criminalization of drug use during pregnancy.

[1] Ada Calhoun, The Criminalization of Bad Mothers, The N.Y. Times Mag. (Apr. 25, 2012),

[2] Ala. Code §26-15-3.2.

[3] Ala. Code §26-15-3.2(a)(1).

[4] Ala. Code §26-15-3.2(a)(2).

[5] Ala. Code §26-15-3.2(a)(3).

[6] The Associated Press, New Ala. Law Being Used to Prosecute Drug-Using Moms, The Legal Intelligencer (Feb. 14, 2008),

[7] Hicks v. Alabama, 153 So.3d 53, 57 (Ala. 2014).

[8] Calhoun, supra note 1.

[9] Dave Boucher & Tony Gonzalez, Prosecutors Argue Controversial Law Helps Drug-Addicted Moms, The Tennessean (Apr. 14, 2015),

[10] Boucher & Gonzalez, supra note 9.

[11] Calhoun, supra note 1.

[12] Ferguson v. City of Charleston, 532 U.S. 67 (2001).

[13] Id. at 70-71.

[14] See Brigitte Nahas, Drug Tests, Arrests & Fetuses: A Comment on The U.S. Supreme Court’s Narrow Opinion in Ferguson v. City of Charleston, 8 Cardozo Women’s L.J. 105 (2001).

[15] Calhoun, supra note 1.

[16] Brief Amicus Curiae for Appellee at 3, Johnson v. Florida, 602 So.2d 1288 (Fla. 1992) (No. 77-831).

[17] Id.

[18] Id.

[19] Id.

[20] Calhoun, supra note 1.

[21] Id.

[22] Boucher & Gonzalez, supra note 9.

[23] Calhoun, supra note 1. In considering 2014 challenge to this use of the chemical endangerment statute, the Alabama Supreme Court placed great weight on the fact that the plain meaning of the word “child” includes fetuses. Hicks, 163 So.3d at 59-61.

[24] Kathleen Adams, Note: Chemical Endangerment of a Fetus: Societal Protection of the Defenseless or Unconstitutional Invasion of Women’s Rights?, 65 Ala. L. Rev. 1353, 1371 (2014). However, the Supreme Court of Alabama recently held that the state’s chemical endangerment statute did not violate the mother’s constitutional right to due process. Hicks, 163 So.3d at 65.


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