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"Send 'Em To Jail That Day!” The Newest Frontier in the Drug War and the People Who Make Millions from It

The shady people and companies behind the push to expand drug testing.

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How has the industry countered charges that its tests catch casual marijuana users more effectively than users of cocaine or heroin? By demonizing pot as particularly destructive. Despite having previously advocated decriminalizing marijuana, the first thing Robert (“Test ‘em all!”) DuPont did after leaving office in 1978 was to hold a press conference declaring that “in many ways it’s the worst drug of all the illegal drugs.” With that declaration, he broke from all expert opinion at the time, including his own. Only three years earlier, he was listed as a co-author of a white paper calling marijuana “a minor problem.”

DuPont, who now sells his services as a “drug-testing management” consultant, would explain his turnaround on cannabis in a PBS interview by saying: “I realized that these public policies were symbolic—all that really mattered was you were for [the decriminalization of marijuana] or you were against it…. I think about it as a litmus test.” In other words, one’s position on marijuana is, above all, a morality test—one in which the use of any illegal drug at all is understood to be a social ill, and therefore the most commonly used illegal drug in America is seen as particularly insidious.

It was not so long ago that the American Management Association published a survey showing that workplace drug testing was rapidly declining. In 2006, HR Magazine cited human resource professionals and testing experts who explained the drop-off by pointing out that drug testing “shows no demonstrable return on investment.” In other words, there was nothing to gain by spending money to ferret out employees who might be perfectly effective workers. This seemed only natural to Lewis Maltby, who in 1999 wrote an ACLU report titled “Drug Testing: A Bad Investment,” and who sees the decline in private employers’ use of drug testing as proof that “testing never meant anything to begin with.” Nearly 60 percent of the 1,000 companies who responded to a DATIA-funded survey in 2011 claimed to drug-test all job candidates. But the same study found a rise in the number of companies that do not conduct any form of pre-employment testing, with several reporting that they do “not believe in drug testing.”

Schools have been similarly reluctant to embrace testing. But industry leaders like DuPont remain optimistic about the benefits of targeting recipients of government assistance. In 2011, Elaine Taulé’s NMS Management Services was one of several companies enlisted by Florida’s Department of Children and Families to inspect the urine of welfare applicants. That year, Republican Governor Rick Scott—whose wife owns a network of Florida clinics that profit from drug tests—signed a law requiring all applicants for cash assistance through the state’s TANF program to take a drug test. Welfare applicants were required to pay the $25 to $30 charged by the drug-testing firms for the tests; those who tested negative would be reimbursed by the state.

The courts struck down Florida’s law soon after it went into effect, following a lawsuit by the ACLU. In the meantime, only 2.6 percent of applicants tested positive for a drug, mostly for marijuana use. The tests cost the state $113,000, in addition to $595,000 in court-ordered retroactive benefits for those who tested positive or refused testing. By July 2012, Florida had spent $88,783 defending the program in court—a costly legal battle that the state ultimately lost when a court ruled in February to uphold the decision striking down the law.

Undeterred, Georgia passed a law nearly identical to Florida’s, although its implementation was put on hold pending the ruling on Florida’s law. (It is unclear how Georgia will proceed now.) In all, in 2012 twenty-eight states considered instituting welfare drug-testing laws; four of them passed welfare drug-testing bills into law. Given that Arizona and Missouri had already recently mandated drug tests for some applicants for social assistance, this brings the number of states currently requiring drug tests for welfare applicants to seven.

 
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