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.