Wednesday, November 14, 2012

Don't prosecute drug war by denying services to young mothers, poor children

I've been thinking a bit about the much-ballyhooed legislation from Gov. Perry and Lt. Gov. Dewhurst, disappointingly championed in the senate by eleven GOP senators, to require drug testing of TANF recipients, who are mostly young mothers and children. As of October of this year, there were around 105,000 TANF recipients in Texas, of whom about 86% were children: Around 90,000 kids and 15,000 adults, mostly young mothers. So if Mom is kicked off "welfare," the main Texans hurt by it are her kids. That strikes me as a misplaced punitive impulse and a poor means of promoting resistance to drug addiction.

The bill is part of a national push among movement conservatives for similar legislation in other states, but the idea has a dicey track record in the federal courts. But really, Congress is to blame in part for granting states this authority in the first place. According to a 2010 briefing paper from ACLU Utah (pdf),
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 gave states the option of drug testing welfare recipients. Section. 902 of P.L. 104-193 of 1996 Sec. 902: “Sanctioning for testing positive for controlled substances. Notwithstanding any other provision of law, 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.”

Despite this option there are currently no states which perform random, suspicionless drug tests on welfare recipients.
Some states do drug screening of at-risk TANF recipients for purposes of securing them treatment, as opposed to disqualification from the program. For example, in South Carolina, "If a person's prospective employer requires a drug test, the state pays for it. It is it positive, the TANF caseworker is notified and has options to help the person, including referring to treatment." But none apparently use it as a comprehensive, front-end screening tool the way Texas' leadership has proposed. According to a 2002 report (pdf) on TANF screening from the US Department of Health and Human Services:
Drug testing is an emerging, controversial issue in the TANF community. Drug testing— through urinalysis, blood, or hair testing— has been used as a part of the substance abuse treatment and criminal justice systems for some time and is increasingly being used by employers. The goals of drug testing in these settings are to determine if an individual is following a required treatment plan or to screen out drug users as a step in the hiring process.

The uses of drug testing in TANF programs are not as clear. They include identifying substance use problems as a potential barrier to employment or monitoring compliance with treatment required as part of a TANF client’s service plan. Drug testing might also serve as a screen for TANF work programs referring clients to job opportunities with employers known to drug test applicants. More punitive uses, such as denying benefits to recipients who refuse random drug tests, are controversial. A federal court in Michigan indicated that the use of drug testing in this manner may be unconstitutional, influencing other states potentially interested in adopting this type of policy, at least for the time being, to hold off on adopting this approach. [Emphasis added.]
According to the Texas Tribune, Governor Perry insisted that, “This is not all about punishment,” but instead “This is also an incentive to get people off of these drugs.” If that's the case, shouldn't drug testing, as in South Carolina, be used to direct TANF recipients to services as opposed to kicking them off the rolls?

The Bush-era DHHS report quoted above added several cautions about drug testing TANF recipients that a decade later are still worth repeating:
Among other limitations, drug testing can:
  • be expensive;
  • be considered unethical if used in situations where drug use is not suspected (i.e., such as the case of random or universal testing); and
  • create an environment of confrontation or suspicion that prohibits the development of a positive relationship between case managers and TANF clients, thus inhibiting other barrier identification and constructive service planning.
The ACLU-UT briefing paper gave additional detail on Michigan's effort to enact the policy Gov. Perry and company have proposed:
Michigan was the first and only state to require random drug testing of all TANF recipients. The 6th Circuit Court in Marchwinski v. Bowler, held that Michigan’s drug testing was unconstitutional. The U.S. Court of Appeals for the Sixth Circuit upheld a lower court’s decision striking down the policy as unconstitutional. The law violated the Fourth Amendment and the court held that“upholding suspicionless drug testing would set a dangerous precedent.” Drug testing in these circumstances must satisfy a “special need, and that need must concern public safety.” Michigan, in that case, couldn't demonstrate the special need, and one doubts Texas could either.
The Sixth Circuit ruling is not binding on Texas, but certainly it's a cautionary marker as state leaders begin to pursue yet another policy likely to reinforce the politically toxic meme that Republicans are at war with women (and in this case their young children). If the Governor and Lt. Governor's goal is to help dissuade TANF recipients from drug use, eliminating their benefits is counterproductive. If they have some other goal, maybe they should just drop it before we have another round of embarrassing court decisions slapping down Texas policy once again.

MORE (11/16): See a similarly themed editorial from the Houston Chronicle.


Lena Levario said...

I wonder whether our Governor considers alcohol a drug. I know I do. It is one of the most dangerous drugs, causing more deaths in our state than all other drugs combined.
I also wonder whether all of the folks receiving taxpayer money from the Texas Enterprise Fund will also have to submit to drug and alcohol testing.

John C. Key MD said...

This isn't an issue I care much about, but I don't like it because it is just another gasp of the dying "Tuff on Crime" beast.

Unfortunately it seems to have a lot of public support politically.

Anonymous said...

But if the mothers dont do drugs, the kids arent penalized right? Seems fair. You can buy dope, why are you on welfare to begin with? You have some right that says you can use drugs and are still "entitled" benefits?

Anonymous said...

How does one have money to purchase drugs, yet not have money to feed their own children... Maybe from selling those food stamps for fifty cents on the dollar. Maybe if the parents weren't doing drugs they could find a job or a better paying job. Think this is the first time I think I ever disagreed with Grits on an issue. :)

Anonymous said...

I consider myself to be one of many left-leaning moderates who would whole-heartedly endorse this idea... IF it was coupled with treatment programs.

This isn't just something that appeals to the far right-wingers. It appeals to those swing voters who really do care that their money is being sent to people who could probably be doing better at finding a job if not for the vicious welfare cycle that has held their families down for so long.

I hope they find a way to attach funding for treatment, and if they do I'm all for it.


rodsmith said...

florida tried this same thing. Court stopped it while case goes though the motions. For the short time it was in place they testest 1,000's of individuals and found a almost useless number less than 100 who failed.

Another total waste of our limited tax dollars.

Anonymous said...

Back in 1994 the republicans in congress passed a change that denied foodstamp benefits to anyone who had been convicted on a felony drug charge. They also banned them from living in government subsidized housing. Both measures are lifetime bans.

No one knows how many millions of people were forced into a life of crime because of these restrictions. But what we do know is that it's a lot cheaper for taxpayers if someone gets 150.00 a month for foodstamps and 500.00 monthly for subsidized housing than it is to pay 45,000 a year to incarcerate those who have no option but to resort to crime in their effort to eat and have a roof over their head.

Republicans, penny smart, but pound foolish....

Red Leatherman said...

I'll admit that at first, testing sounded like a good idea. I even saw some of the post around the blogisphere saying "if I have to be tested to earn it...." but then I read the same article that rodsmith mentioned.
I know there are some strung out people out there but none of the derelicts I've encountered were on welfare as many safeguards already in place weed out the worst of them although there are bound to be a few users on the public dime smoking a little grass and maybe worse.
I'll even side with Rage on the issue of testing with the purpose of determining effective options for treatment.

Anonymous said...

Remember Perry's performance in New Hampshire and during the debates? Was he high or are his mental faculties failing him?

Drug and alcohol testing should be mandatory for all elected officials particularly our legislators. It should be done on a random basis and often during the legislative session. Texans should be assured that our legislators are not impaired when making decisions about the future of Texas. We've seen enough lame decisions come out of the legislators that have cost taxpayers millions of dollars.

I also agree with Lena Levario. Anyone receiving money from the Enterprise Funds(as well as the Emerging Tech Funds) should be required to submit to random drug testing. How much money has Perry doled out through these funds and how many of these companies have now gone belly up?

Anonymous said...

When the War On Drugs isn't enough, instigate a War On The Poor. Useless Republicans...

Anonymous said...

I WORK for the state and I'm subject to random drug testing and have been randomly tested 4 times in my 13 years of employment. If I'm subject to it (and I have no problem with it) then those that receive benefits should be subject to it. I'd like to see a federal law that broadens testing to include random testing for those that receive social security disability, housing, and food stamps. If one tests positive, then a 6 month benefit suspension. A second positive occurrence would result in a 10 year benefit suspension and no voting rights for those 10 years.

Testing 4 All said...

11/14/2012 08:47:00 PM You work for the State and you are drug tested?

All the more reason for the people to insist that the elected/appointed officials submit to drug and alcohol testing. I'm certain your job duties and responsibilities do not impact the lives of Texans as do the decisions made by these elitists.

Start with Perry.

Anonymous said...

don't continue funding drug addiction with taxpayer money.

FYI, talk to any elementary school counselor and hear the awful accounts of children coming to school hungry, having to find donated clothes for them, and guess what else. Many times these children are not being provided for due to all resources including the children are bartered for drugs. And you guessed it, they addict parents are consuming any and every form of government subsidy they can get their hands on.

Anonymous said...

Trying to find a competent person to administer a drug test in social services offices will be nothing short of a miracle.

Any idea how much it will cost to administer all the drug testing?

Chris H said...

Wow, this is the first time that I suspect that Grits hasn't read the bill.

SB11 is a feel good measure. To get around the unconstitutional search problem that the Florida program has, applicants and renewals are given a "controlled substance use screening assessment". If they are suspected of drug use from that assessment, then, and only then are they given a drug test.

If they fail, we send them to Medicaid for a substance abuse treatment program. Then let them hop back on in six months.

1) Instead of looking for work, applicants will be sitting in a bureaucrat's office lying on a survey.

2) A majority of the people that end up failing a drug test will be for marijuana. A drug treatment program for a non-addictive substance sounds like a great use of taxpayer dollars.

3) TANF for all is expanded from ONE year to THREE years. That's just the incentive needed to get people back to work. This moves TANF to PANF (temporary to permanent).

Liz Berry said...

Rick needs to wake up to the 21st century.

Many countries in South America are saying "NO MORE DRUG WAR. For example, Colombia’s president has called for governments around the world, including the UK, to debate legalising certain drugs – even cocaine.

In an interview in the Observer, Santos calls for a new approach to “take away the violent profit that comes with drug trafficking… If that means legalising, and the world thinks that’s the solution, I will welcome it. I’m not against it.”

But some countries like Uruguay are not waiting for permission to legalize drugs.