Drug testing in the USA: A policy for maximising harm

By Lynn Zimmer

This is a version of a paper presented at the VIth International Conference on the Reduction of Drug Related Harm in Florence, March 1995.

Drug testing, which has become increasingly common in the USA, is antithetical to the harm-reduction movement.

Its stated goal is to reduce the number of drug users by threatening them with exposure and sanctioning. Positive drug tests lead to imprisonment, loss of employment, loss of custody of children, homelessness, expulsion from school based extra curricular activities , loss of insurance coverage and expulsion from drug treatment programmes . Although drug testing may deter some people from using drugs, for those not deterred it makes the maintenance of health and welfare more difficult. Rather than strengthening, it weakens drug users’ ties to conventional life and reduces the likelihood that drug use will be transitory. It also increases the likelihood that family members and others will be harmed .

The spread of drug testing in the USA into schools, the workplace, the military, the criminal justice system and beyond is driven by the government’s ideological commitment to a zero-tolerance philosophy and the entrepreneurial enterprises that have capitalised on the ‘war on drugs ‘ .

Drug testing has become an important part of the drug control apparatus in the USA. It was first actively promoted by President Reagan, in the early 1980s, as a strategy for reducing the demand for drugs. Criminal sanctions against drug users were also expanded during this period, but the threat of arrest and prosecution was limited primarily to those caught in the act of buying drugs in retail street-markets (Zimmer, 1990; Kleiman,1992). Drug testing promised to deter additional users by threatening them with detection and ‘civil sanctions’ for a positive test.

The Reagan Administration advanced drug testing by funding research and development into new technologies, particularly those that identify drugs or drug metabolites in urine (Schuster, 1986). It also implemented testing programmes for US military personnel (Willette, 1986; Mulloy, 1991) and government employees in ‘safety sensitive positions’ (Federal Register,1986) -programmes that have since been found by the US Supreme Court to be constitutional (Haas,1990; Gilliom,1994). In addition, the Reagan Administration encouraged private-sector employers to voluntarily test job applicants and current workers, and ordered the Office for Workplace Initiatives within the National Institute on Drug Abuse to assist them in this effort (WalshandErumble,1991).

Under President Bush, drug testing expanded further. His administration advocated the use of drug testing for criminal drug users released from jail pretrial, and those sentenced to probation or parole - with the result of a positive test being incarceration. The Bush Administration also supported legislation requiring the testing of private sector workers in certain regulated industries, such as transportation and nuclear power, and expanded the effort to convince private businesses to test other workers (Walsh and Gust,1989). All of this was part of the govemment’s attempt to broaden ‘user accountability’ - to make all current and potential drug users ‘fear the consequences and penalties that society will impose’ for any use of any prohibited drug (WhiteHouse,1989,p.47).

Private-sector employers eagerly embraced drug testing - not only because of a desire to join the ‘war on drugs’, but because they had been convinced that drug users compromised workplace safety and productivity (Schulhofer, 1989; Gilliom, 1994). By 1988, about 20% of Americans worked in firms that tested job applicants and/or current employees ( Bureau of Labor Statistics,1989) - and the numbers continue to grow (Axel,1991). Many state and local governments now require drug tests for certain types of workers as well. Although many testing programmes for current employees allow drug positives a ‘second chance’ - and the opportunity to obtain drug treatment - additional positive tests usually result in dismissal. Job applicants who fail their drug tests are generally not offered drug treatment and, in most cases, are not even guaranteed that initial positive tests are confirmed with more reliable technologies (Normand et al.,1994).

Drug testing has also become a common requirement for participants in drug treatment programmes (Hubbard et al., 1989), and is used throughout the criminal justice system - in pre-trial release programmes, probation, parole and the prisons (Ger stein and Harwood, 1990; Visher, 1992). American schools have been slower to embrace drug testing (Jacobs and Morag,1992) - in part because a number of important legal issues were, until recently, unresolved. However, the US Supreme Court has now approved drug testing for public school students enrolled in sports and other extracurricular activities, and it may yet approve testing for the entire student body. Private schools, like private businesses, are generally free from legal restraint; they can drug test at will and can expel students who test positive. Home drug testing is also expanding, with parents now having access to a variety of ‘testing kits’ for monitoring drug use by their children (Lewin,1990; Marks,1995).

In each of these contexts, the primary goal of drug testing is deterrence and probably some deterrence is accomplished. However, a secondary goal, often stressed by drug testing’s advocates, is to identify drug users in need of ‘rehabilitation’. In fact, public sup-port for drug testing in the workplace rests largely on the promise that detected drug users will be offered help in overcoming their drug problems (Jacobs and Zimmer,1991).The problem is that drug testings imply identifies people who have used drugs recently, and cannot distinguish between ‘casual users’ and ‘abusers’ (Morgan, 1988). Indeed, because marijuana is detectable for weeks following use, drug testing most commonly identifies marijuana users.

In the workplace, as well as in the criminal justice system, most drug positives are channelled into treatment programmes - whether they are likely to benefit from them or not (Gerstein and Harwood, 1990; Jacobs and Zimmer,1991). Furthermore, once enrolled, those who continue using drugs and are perhaps most in need of treatment can be expelled for testing positive (Hubbard et al., 1989). Thus, one consequence of drug testing is misappropriation of limited treatment resources. Instead of reserving treatment for drug users with the greatest need, or the greatest desire to change their behaviour, drug testing assigns drug users to treatment indiscriminately. Although evaluation studies indicate that those coerced into treatment are as likely to be ‘successful’ as those who enter voluntarily (Anglin and Hser, 1990), the success rates for both groups is very low (Hubbardetal.,1989). In fact, in testing-based treatment, what counts as treatment success may be nothing more than the deterrent impact of drug testing. In other words, it is threat of incarceration or lost employment that motivates abstinence, with treatment being largely superfluous.

The link between drug testing and drug treatment has also had the consequence of locking treatment programmes into the abstinence model (Kleber, 1981; Paolino,1991). Numerous studies have shown that changing drug use habits is often a slow process and one that does not necessarily result in abstinence; indeed, among drug treatment experts, there is near consensus that reductions in drug use ought to be counted as treatment ‘successes’ (Hubbard et al., 1989; Gerstein and Harwood,1990). The treatment which is increasingly being adopted outside the USA acknowledges this fact and works to move drug abusers gradually towards less problematic patterns of use (Engelsman,1991; Pearson,1991; Turner,1991;Schneider,1993;Nadelmann,1995).In the USA, the requirement that drug users in treatment be drug tested and expelled (or even imprisoned upon evidence of continued use makes it impossible for treatment providers to experiment with harm-reduction approaches.

In other ways as well, drug testing is in conflict with harm-reduction philosophies. Of course, by reducing the number of drug users, drug testing might prevent some people, had they not been deterred, from later using drugs in a way harmful to themselves or others. However, drug testing is almost certainly most effective in deterring ‘casual’ or ‘recreational’ users - those whose use is least likely to ever become problematic. Furthermore, even if drug testing protects some individuals from drug-related harm, it does not necessarily reduce the overall amount of drug related harm in society. Indeed, drug testing often produces additional harm for those not deterred, and has collateral harmful impacts on family members and others.

For example, the requirement of drug abstinence as a condition of employment decreases opportunities for drug users to be gainfully employed. In addition to creating economic problems for drug users (and their families), the status of being unemployed increases the likelihood of drug users progressing to more problematic use. Drug use data from the USA show that, for most drugs, unemployment is associated with more frequent use. For example, in 1990, while 1.1 % of employed adults reported past month use of cocaine, the rate for unemployed adults was 2.7% (National Institute on DrugAbuse,1991). It is significant that rates of lifetime use do not show the same kinds of disparity, suggesting that employment status is not a critical factor in experimental or occasional use. More in-depth studies show that once people become committed to frequent drug use, those employed are more likely than those unemployed to reduce their use, even without external pressure to do so (Waldorf et al.,1991). In addition, those employed have substantially higher rates of treatment success(Jaffe,1984;Hubbardetal.,1989).

Thus, the removal of all drug users from the work place is unlikely to reduce the number of ‘problem users’ and may actually increase it.

Drug testing in the schools may also increase rather than decrease the prevalence of drug problems among youth. Its advocates have suggested that by detecting adolescent drug users, before any indicators of dysfunction, early ‘intervention’ is possible (Barton, 1981). However, this ignores that most youthful drug use is occasional and transitory and does not require intervention. It also assumes that intervention produces only positive consequences. The truth is it does not. Simply being labelled a drug user is stigmatising and is likely to generate negative reactions from parents, teachers and non drug-using peers. As a result, some options and opportunities may be foreclosed, thereby pushing adolescent drug users deeper into a deviant subculture. Furthermore, admitting youthful drug users into drug treatment programmes where they are encouraged to think of themselves as ‘addicts’ may ultimately produce more harmful patterns of drug use, marked by therapist defined cycles of ‘relapse and recovery’. Thus, drug treatment should not be regarded as inevitably benign (Peele,1989).

Nor are school-based testing programmes likely to have much deterrent value. Currently, such programmes are largely limited to students enrolled in sports or other extracurricular activities, with exclusion being the primary sanction imposed on those testing positive. What this means is that students attracted to both drugs and school sponsored activi-ties must choose between the two. Of course, the requirement of choosing may stop some adolescents from using drugs; however, it may also stop some adolescents from engaging in activities that, in the long run, protect them from escalating their drug use. Thus, for students not deterred, drug testing may actually reduce the likelihood of their drug use remaining occasional and transitory.

In this regard, the story of Joseph Fernandez, former Chancellor of the New York City schools, is informative. In his autobiography, Fernandez (1993) recounts his earlier experiences with heroin, as a teenager living in New York City in the 1950s and as a member of the US Air Force in the 1960s. During this period, because his drug use remained undetected, he had the opportunity to move, gradually, away from a deviant lifestyle and obtain the educational credentials that would later bring him status and economic success. It is possible, of course, that had he been subjected to drug testing in the schools or the military, he would have abandoned heroin use sooner; however, by his own description, until his mid-20s, he lacked the maturity necessary to weigh the costs and benefits of his drug-use decisions. In retrospect, it seems likely that his youthful drug use ha j few costs because it was never detected. This is not t z say that drug users never benefit from detection . However, a mass detection system is almost certain to harm more youthful drug users than it helps.

In the end, drug testing must be viewed primarily as a system of social control, designed and implemented as a strategy to deter ‘casual’ or ‘recreational’ drug use. There is no evidence that it reduces serious drug problems and it may have the opposite effect. However, it does serve important functions for the ‘war on drugs’. For one thing, by reducing the number of non-problematic users, those causing harm to themselves or others, drug testing promotes the further demonisation of drug users who are not deterred. Indeed, one of the consequences of the increase in drug use among white middle-class Americans during the 1960s and 1970s was that drug use lost some of its deviant status. As drugs were used by ‘respectable people’, those with college degrees, high paying jobs and intact families, it became increasingly difficult to blame drugs for social problems such as crime, educational failure, unemployment, homelessness and urban decline. The federal government’s commitment to workplace drug testing, for the purpose of reducing ‘casual’ drug use, has made it possible for drugs to serve as a viable ‘scapegoat’ again.

Drug testing in the criminal justice system serves this end as well. For most of the twentieth century, drug enforcement specifically targeted the ‘dangerous classes’ - poor people and racial minorities. Today, law enforcement casts a wider net - catching middle class as well as lower-class buyers and sellers. Many of those arrested are then offered the chance to avoid incarceration by regularly submitting to drug tests. Those with the weakest commitment to drugs - middle-class casual users - are most likely to test negative. However, the majority of criminal offenders enrolled in such programmes - those with the most serious drug problems - test positive and eventually go to prison (Pearson,1987; Erwin,1990). Criminal justice drug testing allows their imprisonment to be blamed on their own behaviour and, at the same time, justifies the ever-escalating rate of imprisonment as an unavoidable outcome. In fact, the imprisonment of recalcitrant drug users is promoted as beneficial not only to society, but to drug users themselves, by forcing them to remain abstinent and giving them the opportunity to enrole in prison based drug treatment (Wexleretal.,1988; AnglinandH‘r,1990; Gostin, 1991;Kleiman,1992;Clarketal.,1994).

CONCLUSION

Drug testing continues to be promoted as a solution to the drug problem in the USA - not only by government officials but by a powerful drug testing industry that profits from its expansion (Zimmer and Jacobs,1992) . In the future, there is likely to be more drug testing in the criminal justice system, the work place and the schools. In addition, there is support for drug testing’s expansion into new realms - for example, as a condition of receiving social benefits such as public housing, welfare, research grants, professional licences, driving privileges and student loans (DuPont,1989; von Hoffman, 1995). If this occurs, additional deterrence may be achieved. However, it will come at the cost of further marginalisation of tho‘ not deterred, weakening their ties to conventional life and isolating them from the social institutions that protect against the destructive potential of psychoactive drugs.

Lynn Zimmer, Associate Professor of Sociology, Queens College, City University of New York, USA.

REFERENCES

Anglin DM, Hser Y-I ( 1990). Iegal coercion and drug abuse treatment research findings and social policy implications. In JA Inciardi (ed.), Handbook of lDrug Control in the UniaBd States. Westport, CT: GreenwoodPress.

AxelH ( 1991). Drugtestinginprivate industry. InRHCoombs, LJ West (eds), Dnzg Testing: Issues and Options. New York. C)xford Univenity Press.

Barton WL ( 1981). Remarks on prevention. In M Blasinsky, GK Russell (eds), Urine Testing for Marijuana Use: Implications for a Variety of Settings. Rockville, MD: American Council for Drug Education.

Bureau of Labor Statistics (1989) . Surve of EmployerAna-Drug Programs. Washington DC: US Department of Labor.

ClarkCL, Aziz DW, MacKenzie DL (1994). Shock Incarceration inNew York: Focus on Treatment. Washington DC: Nation al Institute of Justice.

DuPont RL (1989). The case for mandatory, universal drug tests. The WashingtonPostApril 16: B8.

Engelsman EL (1991). Drug policy in the Netherlands from a public health perspective. In MB Krauss, EP Lazear < eds), Searchingfor Alternatives: Drug Control Policy in the L !nited States. Stanford, CA: Hoover Institution Press.

Erwin BS (1990). Old and new tools for the modem prob ation officer. Crime andDeSnquency 36: 61-74.

Federal Register (1986) .51 Fed Reg 32889, September 17 .

Femandez JA (1993). TalesOutofSchool. Boston: Little, Brown SCo.

Gerstein DR, Harwood HJ (1990) . Treating Drug ProblemsS Vol.1. Washington DC: NationalAcademy Press.

Gilliom J (1994). Surveillance, Privacy, and the Law: Employee Drug Testing and the Politics of Social Control. Ann Arbor: University of Michigan Press.

Gostin LO (1991). Compulsory treatment for drug-dependent persons: justifications for a public health approach to drug dependency. The Milbank Quarterly 69: 561-93.

Haas KC (1990). The Supreme Court enters the ‘jar wars’: drug testing, public employees, and the fourth amendment. Dickinson Law Review 94:305-71. *

Hubbard RL, Marsden ME, Rachel JV, llarwood HJ, Cavanaugh ER, Gunsburg HM (1989). Drug Abuse Treat ment: A National Study of Effectiveness. Chapel Hill: The UniversityofNorthCarolina Press.

Jacobs JB, Morag BS (1992) . The curious rejection of drug test-ing by America’s schools. Teachers College Record 94: 208-38.

Jacobs JB, Zimmer L (1991). Drug treatment and workplace drug testing: politics, symbolism, and organizational dilem mas. Behavioral Sciences and the Law 9: 345-60.

Jaffe JH (1984). Evaluating drug abuse treatment: a comment onthe sute oftheart. InFTims,JLudford (eds),DrugAbuse Treatment Evaluation: Strategies, Progress, and Prospects. Rockville, MD: National Institute on DrugAbuse.

Kleber H (1981) . Drug treatment programs . In MBlasinsky, GK Russell (eds), Urine Testingfor Marijuana Use: Imp~ons for a Variety of Settings. Rockville, MD: American Council for Drug Education.

Kleiman MAR (1992). Against Excess: Drug Policy for Results.NewYork: Basic Books.

Lewin T (1990) . Drug testing kit for parents spurs stormy debate.New YorkTimes, September 13: A16.

Marks P (1995). Newoptionfor worried parents: drugtesting at home. New YorkTimes, July 13: B1.

MorganJP(1988). The ‘scientific’basisforurine testing. Kansas Law Review 36: 683-97.

Mulloy PJ (1991) . Winning the war on drugs in the military. In RH Coombs, LJ West (eds), DrugTesting: IssuesandOptions. New York: Oxford University Press.

Nadelmann E (1995). Switzerland’s heroin experiment.

National ReviewJuly 10: 46-7.

NormandJ, LempertRO, O’BrienCP (1994). Underthe Influ-ence? Drugs and the Arnerican Workiorce. Washington DC:National Academy Press.

Paolino RM (1991). Identifying, treating, and counseling drug abusers. In RH Coombs, LJ West (eds), Drug Testing: Issues and Options. New York: Oxford University Press .

Pearson FS (1987). Research on New Jersey’s Intensive SuperviS sion Program. Washington DC: National Institute of Justice.

PearsonG (1991). Drug control policies inBritain. InM Tonry, JQWilson (eds), Crime andJustice: AReview of Research, Vol 14. Chicago: UniversityofChicago Press.

Peele S (1989) . The Diseasing of America: Addiction Treatment Out of Control. Lexington, MA: Lexington Books.

Schneider W (1993). Report onDrugPolicy in the City of Frank-furt. Frankfurt, Germany: Drug Department.

Schulhofer Sl (1989) . On the Fouth Amendment rights of the law-abiding public.1989 Suprerne Court Review, pp.87-163.

SchusterC (1986). Foreword. InJMWalsh, SGust (eds), Urine TestingforDrugsofAbuse. Rockville, MD: National Institute onDrugAbuse.

Turner D (1991) . Pragmatic Incoherence: the changing face of Britishdrug policy. In MB Krauss, EPLazear (eds), Searching f or Alternatives: Drug Control Policy in the United States . Sun-ford, CA: Hoover Institution Press.

Visher CA (1992). Pretrial drug testing: panacea or Pandora’s box? Annals of the Arnerican Academy of Po€ cal and Social Sdence524: 112-31.

von Hoffman N (1995) . Let’s wage a civil - not a criminal - war on drugs. New YorkObserver, April 5: 4.

Waldorf D, Reinarrnan C, Murphy S (1991). Cocaine Changes:The Experience of Using and Quitdng. Philadelphia: Temple University Press.

Walsh JM, Gust S (1989). Drugs in the Workplace: Research and EvaluationData. Rockville, MD: National Institute on Drug Abuse.

Walsh JM, Trumble JG (1991). The politics of drug testing. In RH Coombs, LJ West (eds), Drug Testing: Issues and Options . New York: Oxford University Press.

Wexler HK, Lipton DS, Johnson BD (1988) . A Crirninal Jusdce Strategy for Treating Cocaine Heroin Abusing Offenders in Custody. Washington DC: National Institute of Justice.

Willette RE (1986). Drug testing programs. In RL Hawks, CN Chang (eds), Urine Tesdngfor Drugs of Abuse. Rockville, MD: National Institute on Drug Abuse.

White House (1989) . NationalDrugControl Strateqgy. Washing ton DC: US Govemrnent Printing Office.

Zimrner L (1990) . Proactive policing against street level drug trafficking in New York City. ArnericanJournal of Police 9: 43-74.

Zimmer L,  JacobsJB (1992). The businessofdrug testing: tech nological irmovation and social control. Conternporary Drus Problerns 19: 1-26.