Tuesday, January 31, 2023

Is The State Of Wisconsin’s Drug Testing Plan Unconstitutional?

Governor Scott Walker announced plans this week to move forward with making Wisconsin the first US state to drug test people applying for food stamps.

We’ve been down this road before. Several states have attempted to drug test people applying for public assistance, yet in each case it has proven to be costly, ineffective, and often unconstitutional.

Disproportionately impacting the poor and communities of color, Walker’s proposal stigmatizes people who seek public assistance and perpetuates the dangerous, baseless notion that low-income people and communities of color are somehow less deserving and more likely to use drugs.

If Governor Walker really wants to help people struggling with problematic drug use, he could start by investing in accessible and evidence-based rehabilitation and treatment programs in Wisconsin. According to a report from Wisconsin’s Department of Health Services, less than 23% of people who need addiction treatment in Wisconsin receive it.

And Walker’s clearly neither interested in saving his state money – drug testing public assistance recipients costs the government more money than it saves — nor investing in treatment.

And there’s a big catch: The Fourth Amendment of the U.S. Constitution prohibits unreasonable search and seizure. Police or other state authorities must have probable cause before they can search an individual person. And they must establish that probable cause before a judge who then issues a warrant.

Governor Scott Walker appears to believe that applying for food stamps is probable cause to assume that all able-bodied adult applicants have committed a crime and therefore should be subjected to drug tests and then be given the choice to go into rehab or go hungry should they test positive.

But this assumes three things. First, that anyone who tests positive for drugs is engaged in problematic drug use and unable to hold a job. Second, that a drug test can distinguish between therapeutic use of a drug under the supervision the health care system versus personal use for some other reasons outside the supervision of the health care system. Third, anyone who tests positive for drugs should be pressured into rehabilitation or treatment.

None of these assumptions stand up to science.  Some people use drugs and alcohol on an occasional basis and are totally functional and able to hold down and even excel at work.  Studies have consistently shown over decades that problematic use is limited to a small fraction of people who use drugs. Second, drug tests identify drug usage, not addiction, and most positive tests simply identify marijuana use. Third, even if a drug test could identify only those people whose use of drugs is problematic, coerced treatment is much less effective than voluntary treatment, not to mention a violation of individual autonomy and human rights.

So let’s call this policy out for what it is: yet another attempt to stigmatize and criminalize people living in poverty and, in particular, poor communities of color.

Widney Brown is the Drug Policy Alliance’s Managing Director of Policy.



Don't Miss Your Weekly Dose of The Fresh Toast.

Stay informed with exclusive news briefs delivered directly to your inbox every Friday.

We respect your privacy. Unsubscribe anytime.