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

This article originally appeared in the Nation Magazine. Click here to subscribe to the Nation. This story was produced with support from the Economic Hardship Reporting Project.

The annual Drug & Alcohol Testing Industry Association (DATIA) conference, held in 2012 in San Antonio, Texas, looks like any other industry gathering. The 600 or so attendees sip their complimentary Starbucks coffee, munch on small plates of muffins and fresh fruit, and backslap old acquaintances as they file into a sprawling Marriott hotel conference hall. They will hear a keynote address by Robert DuPont, who served as drug policy director under Richard Nixon and Gerald Ford. Nothing odd about any of this until you consider that the main subject of the conference is urine.

Seventy-seven years old, DuPont adopts the air of a sprightly televangelist as he outlines what he calls “the new battle lines” in the war on drugs, one that “begins with kids.” At the climax of his speech, DuPont offers “the new paradigm” of drug treatment: a program that one controversial Hawaiian judge administers to all drug-addicted probationers he oversees. “If they test positive,” he says, his voice slowly rising into a high-pitched yell, “they go to jail that day! No discussion!… No discretion! To jail that day!”

As DuPont finishes his speech, the hundreds of drug-testing company representatives in the audience rise to give him a standing ovation.

DuPont is in an expansive mood following his speech. Since the 1980s, he has been in the business of selling drug-testing services to employers. As far as he’s concerned, drug tests should be given to “anybody who receives a benefit,” from unemployment insurance to welfare. “Test ‘em all!” he exclaims.

This may sound overzealous, but Republican lawmakers around the country are already enthusiastically embracing the idea of making clean urine a condition of receiving public benefits. Since 2011, seven states have passed laws mandating drug tests for Temporary Assistance for Needy Families (TANF) applicants and recipients, and in 2012 at least twenty-five other states considered proposals to tie welfare cash assistance, and in some cases also food stamps, to drug tests. In February 2012, Congress passed a law paving the way for states to urine-test the recipients of unemployment benefits seeking work in sectors where such screenings are required. Since then, sixteen states have considered laws tying unemployment insurance benefits to drug tests.

The thirst for urine can be traced to the military’s 1971 Operation Golden Flow, aimed at detecting druggies among Vietnam veterans. Launched in response to rumors of heroin addiction, the test disproportionately netted marijuana users, since one byproduct of marijuana, carboxy-THC, lingers in the body longer than that of harder drugs. (In contrast, the body flushes out the byproducts of harder drugs, such as cocaine and heroin, within a day.) Nevertheless, before long, all service members were required to urinate in a cup at least once every two years.

Then there was the executive order issued by Ronald Reagan in 1986, which warned that “the use of illegal drugs, on or off duty, by federal employees in certain positions…may pose a serious risk to national security.” The order mandated that all federal agencies implement drug-testing programs to “show the way towards achieving drug-free workplaces.” Two years later, Reagan went one step further, signing the Drug Free Workplace Act, which mandated urine tests for every employee working for a federal grantee and even those working for some contractors.

At first, the medical profession dismissed urine testing as “chemical McCarthyism”—and ineffective to boot, since a worker using cocaine several times a week was more likely to pass a drug test than a colleague who’d smoked a joint at a party the previous Saturday night. Meanwhile, most tests ignored alcohol, which is the drug most often blamed for workplace accidents.

“It’s like learning that somebody drank beer three days ago,” says Bill Piper, director of national affairs with the Drug Policy Alliance. “What’s that going to say about how functional they are at work today? It’s unscientific and discriminatory.”

But the Reagan administration saw drug tests as essential for cracking down on a population largely outside the reach of law enforcement: people smoking pot in the privacy of their own homes. “Because anyone using drugs stands a very good chance of being discovered, with disqualification from employment as a possible consequence, many will decide that the price of using drugs is just too high,” read a 1989 White House report.

In the decades since, drug-testing companies have marketed urine tests as a wise investment for all employers. They claim that any drug user is a less productive worker, and more likely to cause workplace accidents, show up late for work or simply quit. Such claims persist despite a 1994 review, by the National Academy of Sciences, of all the independent research published on workplace drug testing, which found little support to back up those claims.

Indeed, one study of employers in the high-tech sector found that drug testing “reduced rather than enhanced productivity.” Performance-based tests, researchers found, are far more effective at assessing a worker’s ability to perform safety-sensitive jobs than drug testing. Unlike urine tests, these tests detect drug impairment and a host of other factors (fatigue, stress, alcohol) far more likely to compromise a worker’s concentration than past marijuana use.

Nevertheless, the escalation of the drug war would prove more powerful than the evidence that undermined it, producing a powerful coalition of government and private industry players determined to convince employers of the wisdom of monitoring their workers’ bladders.

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One of the entrepreneurs drawn to the burgeoning drug-testing industry was Elaine Taulé. A longtime DATIA board member, she says she got into the business because she wanted to test her own sons. When she told this to the staff of National Health Laboratories, a major drug-testing lab, in 1987, they were incredulous. “The lab just sort of looked at me and said, ‘What! Do you really think your 17-year-old is going to pee in a cup?’” But Taulé was insistent. “If I say, ‘It’s either your urine or your car keys,’ I may get his urine,” she said. She went on to found her own drug-testing business, NMS Management Services, in 1989.

Taulé’s timing was impeccable. Around the time she started testing her sons, other, much larger players were entering the field, including the Swiss pharmaceutical giant Hoffmann-La Roche, the manufacturer of Valium and a range of popular sleeping pills. The company established one of the first major drug-testing labs in America and won an early urine-testing contract with the Pentagon, leading to $300 million in annual sales by 1987. The following year, Hoffmann-La Roche stepped up its sales efforts with the launch of a major PR and lobbying campaign to “mobilize corporate America to confront the illicit drug problem in their workplaces.” The drug manufacturer called its new campaign “Corporate Initiatives for a Drug-Free Workplace.”

Before long, with the help of a New Jersey–based lawyer named David Evans, Hoffmann-La Roche was organizing workshops around the country to convince employers to set up drug-testing programs. In an interview with The Nation, Evans likened his role to that of “a doctor coming in to talk about how to set up a medical device.” During that first campaign, 1,000 employers signed up. “There’s clearly a momentum here,” gushed Irwin Lerner, then the drug company’s president, at the campaign’s launch in 1988. “I think we’ve tapped a chord among corporate America.”

The sleeping pill manufacturer’s enthusiasm evidently impressed Reagan himself, who delivered a keynote address at the launch of Hoffmann-La Roche’s Corporate Initiatives campaign. Reagan praised the company for making “it clear that not only are drug users not part of the ‘in crowd,’ but unless they quit taking illegal drugs they’ll be part of the out-of-work crowd.”

The drug-testing industry took aim at lawmakers as much as employers. Hoffmann-La Roche, for instance, worked “with federal and state government officials,” according to a press release issued by the PR company hired to market the campaign. Lerner told the press that the drug company also envisioned a “grassroots strategy” to prevent states from passing laws to decriminalize marijuana.

By 2006, 84 percent of American employers were reporting that they drug-tested their workers. Today, drug testing is a multi-billion-dollar-a-year industry. DATIA represents more than 1,200 companies and employs a DC-based lobbying firm, Washington Policy Associates. Hoffmann-La Roche’s former consultant, David Evans, now runs his own lobbying firm and has ghostwritten several state laws to expand drug testing. Most significant, in the 1990s Evans crafted the Workplace Drug Testing Act for the American Legislative Exchange Council (ALEC), of which Hoffmann-La Roche was a paying member. Laying out protocols for workplace drug testing, the bill—which has been enacted into law in several states—upheld the rights of employers to fire employees who do not comply with their companies’ drug-free workplace program.

Over the past decade, lobbyists like Evans have focused on what a DATIA newsletter recently dubbed “the next frontier”—schoolchildren. In 2002, a representative from the influential drug-testing management firm Besinger, DuPont & Associates heralded schools as “potentially a much bigger market than the workplace.” That year, the Supreme Court upheld the right of schools to drug-test any student involved in extracurricular activities, from the football team to the chess club. (Many in the drug-testing industry advocate testing all school kids ages 12 and up, but they have failed thus far to convince the courts.)

Like Elaine Taulé, David Evans turned to his own kids for inspiration. He helped the two New Jersey high schools where his children were students to craft drug-testing policies and then set about promoting them as models for schools across the country. In a 2004 radio address, President George W. Bush singled out one of them, Hunterdon Central Regional High School, as a sterling example of “the positive results of drug testing across the country” and proposed committing $23 million of federal education funds to drug-testing high schoolers.

Studies have shown that there is no difference in levels of drug use at schools that subject students to testing and those that do not. And some drug policy experts worry that drug testing may push students away from marijuana and toward drugs such as cocaine, heroin and alcohol—those not generally detected by urine tests.

Nevertheless, Taulé sighed contentedly in the hotel lobby outside DATIA’s 2012 meeting. “It’s like it’s come full circle,” the Florida entrepreneur says. “I started off wanting to help kids, and now I am.” Taulé, who has received two grants from the Department of Education to collect the urine of Florida school kids, somehow can’t stop testing her own sons. Now well into middle age, and both employed at their mother’s drug-testing firm, her sons walk up to us and shyly ask permission to join the interview.

Settling into an upholstered chair across from his mom, 50-year-old Marc Taulé laughs nervously, recalling the last time his mom made him hand over his urine—last year. To everyone’s surprise, he tested positive for cocaine. He’s not a cocaine user; he had been prescribed a painkiller called Lidocaine after minor surgery. “I love them, and just don’t want to see them in trouble,” Elaine Taulé explains.

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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.

In the meantime, several Republican lawmakers in Congress have pushed hard for the mandatory drug testing of anyone, anywhere, applying for welfare. Leading the charge in the Senate is Orrin Hatch, longtime conservative stalwart from Utah, who received a $8,000 campaign contribution in 2012 from the political action committee of Laboratory Corporation of America (LabCorp), a behemoth in the drug-testing industry and a Hoffmann-La Roche spinoff. Hatch has also received $3,000 from another political action committee to which LabCorp contributes—the American Clinical Laboratory Association PAC—as well as $4,000 in campaign contributions from the PAC of another company with major interests in drug testing, Abbott Laboratories. GOP Congressman Charles Boustany is among those pushing welfare drug testing in the House. In the 2012 campaign cycle, he received $15,000 from Abbott Laboratories’ PAC.

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Data released by the National Conference of State Legislatures demonstrates that lawmakers’ obsession with drug-testing the poor has shown no sign of abating in the current legislative session. Twenty-nine states have proposed welfare drug testing in 2013.

A day after assuming the vice presidency of the Kansas State Senate in November 2012, Republican Senator Jeff King vowed that his state would pass a law mandating drug tests not only for welfare but also unemployment recipients. King’s proposal was approved by the House on March 26.

Drug testing for welfare recipients is also being discussed in Ohio and Texas, where Abbott Laboratories spent $133,500 on campaign donations to state politicians in the lead-up to the 2010 and 2012 elections, in addition to more than $500,000 spent by the company on state lobbying contracts since 2010.

Watts Key is the national director of service providers at LabCorp. Sitting in the hallway of the Marriott during the DATIA conference, Key says he’s confident that when the legality of urine testing for benefits is “sorted out,” it will “be a very big part of drug testing.” To him it’s inevitable that welfare becomes “a huge potential market of drug testing.”

He’s hardly the only industry leader pointing to good times ahead. “It’s a matter of time” before drug testing for welfare benefits is widespread, says Philip Dubois, DATIA’s chairman-elect. Dubois’s own drug-testing firm is now gearing up to test welfare applicants in Georgia.

As more states consider mandatory drug testing as a condition of financial help, DATIA staffers are preparing for a busy 2013. “Say Michigan proposes a welfare drug-testing law,” says Laura Shelton, DATIA’s executive director. “What we’d do is look at what we like about it, what we don’t like about it, and then provide [members] the sample text that they can then send to their legislator in support of the law, and if there’s any changes that we suggest.”

Sitting in a hotel hallway at the conclusion of the conference, Shelton says that she envisions a setup in which drug-testing for benefits “would go hand in hand with…welfare. It’s basically the same thing, when you look at it.” Because so many people must undergo drug tests “to have a job to pay taxes,” she reasons, it makes sense that “if that taxpayer money is being used for [unemployment insurance] or for welfare, that testing [should] be a part of that program as well.”

Congress agreed when, in February 2012, it amended federal rules to allow states to drug-test select unemployment applicants. The Drug Policy Alliance dubbed it a “policy [that] broadly expands and subsidizes drug testing in a way that may be difficult to reverse for many years, if ever.” Among the Republican lawmakers who pushed hard for the change was Congressman Dave Camp, who owns at least $81,000 in assets in companies that are major players in the drug-testing industry, such as LabCorp, Abbott Laboratories and Hewlett-Packard. He has also received $5,000 in federal campaign contributions from LabCorp over the past three years.

The Labor Department has yet to issue guidelines to states interested in drug-testing unemployment insurance applicants—but states are hardly waiting for guidance. With sixteen states considering such bills since 2012, the idea has found enthusiastic champions in Texas’s GOP-dominated legislature. Forcing jobless Texans to pee in cups would cost the state $30 million a year, according to the Texas legislative budget office, with $27 million of this sum going to a drug-testing company. Yet last November, Governor Perry publicly endorsed the idea at a press conference with State Senators Tommy Williams and Craig Estes, as well as State Representative Brandon Creighton. All four have recently received campaign money from Abbott Laboratories.

“What better way to shake it and move it, and drive some of ‘em outta the program, than to implement drug testing?” says Chris Williams, a vice president at ArcPoint Labs. His firm is already marketing its “welfare drug-testing services” in more than a dozen states, and providing more hands-on services to one of the lawmakers leading South Carolina’s efforts to drug-test unemployment insurance recipients.

Seated in a secluded corner of the Marriott on the final day of the DATIA conference along with several other ArcPoint executives, Williams explains that the company has been advising Republican State Senator David Thomas, the sponsor of a proposed 2010 South Carolina bill to drug-test the jobless. The bill was defeated.

In 2012, South Carolina legislators considered three separate bills to drug-test the unemployed, and the idea has been championed by the governor, ALEC alum Nikki Haley, who exclaimed at a Lexington country club gathering in September 2011, “I so want drug testing. It’s something I’ve been wanting since the first day I walked into office.” The same year, despite a statewide unemployment rate higher than 9 percent, South Carolina lawmakers slashed the duration for such benefits from twenty-six to twenty weeks.

“Initiatives like this, [which] scapegoat those who need—and are entitled to depend on—basic social insurance programs, are inconsistent with the unemployment insurance program’s purpose and history, insensitive to the realities of today’s economy, and insulting to millions who are shouldering the greatest burdens of job loss and inability to find new work,” says Rebecca Dixon, an analyst at the National Employment Law Project. But for Republican lawmakers pushing to slash a federal program that has become a lifeline for millions of Americans, scapegoating the victims of the worst economic downturn since the Great Depression seems to be precisely the goal.

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For decades, drug tests have disproportionately targeted vulnerable groups, such as low-wage workers, children and parolees. And everywhere these tests have been institutionalized, civil libertarians have criticized them as an infringement of privacy and rights. Yet if Republican lawmakers get their way, millions of laid-off workers and welfare recipients around the country will be subjected to the kind of intimate intrusion that Elaine Taulé imposes on her middle-aged sons.

Back at the DATIA conference, Marc Taulé, who has been rewarded for his years of subservience to his mom’s urine testing with a position as vice president of business development at NMS, remarks, “We’re still on the random drug-testing program in the Taulé family!”

“I’m sure our nieces and nephews are gonna be random-drug-tested, too!” he adds, his staccato laughter ringing out nervously through the lobby of the Marriott.