Kaye Beach
March 15, 2012
From 23rd and Lincoln the JRLR’s Insiders’ Report;
A measure requiring welfare recipients to be drug tested passed the House Monday morning, with a floor amendment that would expand the requirement to include political candidates.
HB 2388, by Rep. Guy Liebmann, R-Oklahoma City, would require drug tests of individuals who receive Temporary Assistance for Needy Families, within three months of being approved for benefits, with the applicant bearing the cost of the test. In a two-parent household, both parents would have to be tested.
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First of all, I do not relish the idea of my tax dollars going to support people who are doing drugs. But here is my problem. I have an attachment to our Bill of Rights and I know that these rights apply to all of us or they apply to none.
Now, I’m no lawyer but it seems clear that these programs strike a potent blow to our Fourth Amendment. You know the one that prohibits search and seizure without a warrant? Number 4, if you haven’t noticed, is hanging by the barest of threads as it is. I will admit, it is not my concern over poor pot smoking welfare recipients that motivates me on this (Nevermind that alcohol which is perfectly legal but causes terrible damage to individuals and families is not at issue here. Ask yourself would you prefer an alcoholic parent or a pot smoking one? Hands down, if I am a child, I am praying for a pot smoking parent as opposed to an alcoholic any day of the week! ) No. My concern is for how this will effect me.
Legal experts have said that allowing this type of program in order catch a few illegal drug users on the public dole is too high a price to pay as it would weaken our rights under the Fourth Amendment.
I have done some research and no matter which way I look at it, drug testing for welfare recipients just seems to be poor policy as well.
On Oct. 24, 2011, a federal judge in Florida, Judge Scriven (appointed by GW Bush) halted the Florida drug testing of welfare recipients program which was challenged by a 35 year old Navy veteran, Luis Lebron, a full time student at the University of Central Florida.
The Florida judge found that the drug testing program is a violation of the Fourth Amendment.
Judge Scriven writes; “The constitutional rights of a class of citizens are at stake, and the Constitution dictates that the needs asserted to justify subverting those rights must be special, as the case law defines that term, in order for this exception to the Fourth Amendment to apply.”
The Florida federal judge found that there was no “special needs” to justify this program.
The “special needs” doctrine is another exception to the warrant and probable cause requirements of the Fourth Amendment. Special needs cases generally arise from searches by government actors other than police officers, such as school officials, public employers, and probation officers.
The doctrine applies when the government can demonstrate that:
(1) it is impracticable to obtain a warrant;
(2) the governmental interest outweighs the intrusion;
(3) the immediate objective of the search is one other than to generate evidence for law enforcement purposes, even if the ultimate goal is non-criminal in nature. link
There was also a study done before implementing this program which showed a very low incidence (5.1%) of illicit drug use among welfare recipients.
“In this litigation, the State provides scant evidence that rampant drug abuse exists among this class of individuals,” writes Judge Scriven.
**Around 8% of the general population uses illicit drugs. http://oas.samhsa.gov/2k7State/Ch2.htm#Fig2-1
That same study produced these facts;
Evidence from the Florida demonstration project showed very little difference between drug users and non-users on a variety of dimensions. Users were employed at about the same rate as were non-users, earned approximately the same amount of money as those who were drug free and did not require substantially different levels of governmental assistance.
Read the 37 page ruling here.
The Florida drug testing program in it’s first month found 2% of TANF applicants tested positive for illicit drug use. There were a number of applicants that did refuse the test and that is certainly a money saver but, are all of those refusers taking illicit drugs? Well, there is the fee for the test that some may have been unable to pay, transportation to the clinic to do the test may have been lacking and it is even possible that some of those that refused although poor, might also be too proud to relinquish their rights by submitting to a pee test as in the case of the Navy vet who brought the case against the state in the first place. A urine test is legally considered to be a search and there was no reasonable suspicion that this gentleman was doing drugs therefore his rights were being violated.
Potential candidates for office might be relived to know that the same grounds that have repeatedly sunk the drug testing for welfare recipients also applies to them. The Georgia Supreme Court sunk the drug testing for political candidates based on no substantial special need.
What we do know from the facts is that only 2-5% of potential recipients test positive for illicit drugs and previous studies show that those who do test positive show no measurable difference in employment rates or amount of assistance required than non users.
All in all, from a public policy perspective, there seems to be no pressing need for this program. Emotionally however, it is a different story. No one like the idea that we are using tax dollars to support lifestyles we don’t approve of. So the question is, do we push forth policy based on moral indignation even if the facts don’t support our concerns? Do we push forth policy not supported by the facts for emotional gratification even though there may be negative repercussions on all of us as in weakening the Fourth Amendment?
Judge Scriven writes;
Conversely, imposing an injunction would serve the public interest by protecting TANF applicants from the harm caused by infringement of their constitutional right, a right here that once infringed cannot be restored. “Perhaps no greater public interest exists than protecting a citizen’s rights under the constitution.” (Emphasis mine) Marchwinski, 113 F. Supp. 2d at 1144 (quoting Legal Aid Soc. of Haw. v. Legal Servs. Corp., 961 F. Supp. 1402, 1418 (D. Hawaii 1997)) link
And yes. Someone will sue and that will cost the state beaucoup bucks to defend against and the state will lose. No cost savings, less freedom-what’s not to love about this bill!?
Seriously, can we stop implementing irrational policies that just come back to bite us in the butt?
