In discussing the rights of defendants and the rights of the government entity charging a defendant with a crime one of the controversial topics is mandatory drug testing for defendants. Is it Constitutional? Is it beneficial? Has it made a difference?
The Fourth Amendment of the U.S. Constitution reads: “The rights of the people to be secure against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” (U.S. Constitution Online) The Supreme Court, in Ferguson v. City of Charleston, ruled that mandatory drug testing must meet special needs (Ferguson v. City of Charleston, 2001) The majority opinion was that material collected voluntarily and then provided to law enforcement without consent from the donor was not unconstitutional, but that the means of collecting the material, through doctors at a state medical facility, was not constitutional and did violate the Fourth Amendment. Justice Anthony Scalia dissented in this case, citing that the testing of urine was not an unreasonable seizure due to the nature of urine, that it is discarded. Much as previous rulings stated garbage left at a curbside is not protected under the Fourth Amendment. (Ferguson v. City of Charleston, 2001)
When a defendant is booked into jail, the special needs requirement is met. The government entity holding the defendant is liable for the welfare of the defendant during the time of incarceration and must be aware of any medical conditions, including drug or alcohol withdrawal symptoms in order to provide adequate medical attention. The government also bears a responsibility for the welfare of other prisoners incarcerated with the defendant and must ensure their protection as well. The government is in the position to require drug testing as part of confinement and pre-sentencing guidelines.
Benefits of Drug Testing
The benefit of requiring defendants to be subjected to drug testing is limited at best. Drug abuse can be a mitigating circumstance in the commission of certain crimes. It is also treatable in some cases and can help judges determine if treatment is a better option than simply incarcerating the defendant. For statistical purposes it can show the spread or decrease of drug usage in the criminal population as well as allow for passage of new laws or levies to provide additional treatment facilities. Does it serve a purpose?
While the reasons for mandatory drug testing of defendants are justifiable, the real test is what happens to the information, how does it benefit the defendant, the criminal justice system and the public? Does it deter repeat offenders, failure to appear or aid in treatment?
There are numerous studies available that document the percentage of felony convictions among drug users, how old they were at the time of the crime, race, age, gender, etc. There is a concise breakdown of the substances abused. There are studies that show family history and predilection to further criminal behavior. But the studies do not show a favorable outcome in possessing this knowledge. One such study conducted in 2002 showed over half the jail population nationwide tested positive for substance abuse which includes drugs and alcohol. This included both male and female inmates. White, middle-class inmates were more likely to test positive for substance abuse and over 21.8% of all suspects charged with a violent crime reported using drugs in the month prior to the offense. (James and Karberg, 2005, pp,1,6)
One of the most disturbing statistics within the report dealt with treatment for substance abuse among jail inmates. Over one half of jail inmates reported participating in substance abuse treatment programs either in prison/jail or while on probation/parole. The numbers indicate that there are increasing numbers of repeat offenders due to drugs and/or alcohol. (James and Karberg, 2005, p. 8 )
This seems to indicate that treatment for substance abuse is not effective in deterring further abuses and subsequent criminal activity either to support the drug/alcohol addiction or as a result of the impairment induced by drug/alcohol abuse. There were approximately 340,047 State and 24,729 Federal prisoners reporting participating in substance abuse treatment in 1997. In the same report, the number of facilities for treatment of substance abuse was 1,668. (Drug Treatment, 2005) The government has neither the ability nor the space to effectively treat drug addiction in jail inmates. (Neubauer, 2002) Not having the means to treat this problem, it makes little difference other than for statistical purposes, to track drug abusers in the jails and prisons. And the statistics do not show the public is any safer for the information. There is still an increase in drug abuse and the criminal behavior that exists in some individuals due to their drug usage.
Mandatory drug testing has not deterred criminal behavior due to drug abuse. There are not enough treatment facilities or programs available to effectively treat drug abuse among convicted felons. Treatment has not worked in preventing crime due to drug abuse. And the cost of testing and maintaining the records could be better spent in building more jails and prisons to house the growing population of convicted criminals.