Last month, a Kentucky legislator introduced a bill mandating drug tests for adults who get public assistance. That was unconstitutional in 2003. And now? (More)

So far House Bill 208 has only been introduced by Rep. Lonnie Napier. On February 1st, it was sent to their Health and Welfare Committee. Rep. Napier says it will stop the outrage of people using taxpayer money to buy drugs:

However given the fact that some may be abusing these programs, including using these funds to purchase drugs, it is essential that we require anyone receiving government assistance to submit to testing.

Rep. Napier added:

They get their food stamps and they take ’em and buy groceries and swap them for drugs and all kinds of things like this and the children are not reaping the benefits of it.

But the National Institutes of Health studied the issue, and found:

Welfare recipients are no more likely to use drugs than the rest of the population.

According to a 1996 study by the National Institute of Alcohol Abuse and Alcoholism, differences between the proportion of welfare and non-welfare recipients using illegal drugs are statistically insignificant.

Still, under Rep. Napier’s bill, Kentucky would adopt these changes:

(10)   (a)     The cabinet shall design and implement a substance abuse screening program for adult persons receiving or seeking to receive monetary public assistance, food stamps under the federal food stamp program, or assistance under the state medical assistance program, with the screening program including periodic testing of the person’s blood or urine for the presence of controlled substances as set out in this section.

(b)     An adult person shall be ineligible for public assistance if:
1.      The person does not participate in the substance abuse screening program established under this section; or
2.      The person tests positive in a substance abuse test administered by the program for the presence of:
a.      A schedule I controlled substance; or
b.      A schedule II – V controlled substance not prescribed for that person.

(c)     The substance abuse testing component of the screening program shall be designed so as to require that testing occurs as an initial condition precedent prior to the receipt of public assistance and once for each subsequent year the adult person receives public assistance, with the person being randomly assigned a month within that year to submit to testing upon receipt of reasonable notice from the cabinet.

(d)     The results of testing conducted under this subsection shall not be admissible in any criminal proceeding without the consent of the person tested.

(e)     The secretary shall by administrative regulation prescribe the design, operation, and standards for the implementation of this section.

In 1999, Michigan passed a similar law, which was authorized by the Welfare Reform Act of 1996. A year later, the Federal District Court in Michigan ruled that the law violated the Fourth Amendment.

But in 2002, the a three-judge panel of the U.S. Sixth Circuit Court of Appeals reversed the district court ruling, holding in Marchwinski v. Howard that: (1) the proper standard was whether Michigan had shown a special need—public safety being but one consideration in assessing need; (2) Michigan had a strong interest in ensuring that public assistance monies were used for the welfare of recipients’ children; (3) welfare recipients had a diminished expectation of privacy; and (4) plaintiffs had not shown that drug testing was an unreasonable search.

The Sixth Circuit granted a petition for rehearing en banc, and the en banc panel split 6-6. Under Sixth Circuit precedent, the split decision reversed the previous decision and affirmed the finding of the District Court. The Michigan law was overturned and mandatory drug screening stopped.

The U.S. Sixth Circuit includes Kentucky, so the Marchwinski ruling would govern an initial review of the Kentucky law. Perhaps Rep. Napier hopes the Sixth Circuit will reverse its decision now. (Note: Rep. Napier did not return a request for comment.) The Huffington Post quoted him as saying:

This is gonna save us a lot of money, because there’s gonna be a lot of people showing up on illegal drugs and they will lose their assistance.

But the NIH study suggests it may not save Kentucky much money at all. And according to the ACLU:

  • New York and Maryland considered a similar law, but determined it would not be cost effective.
  • Louisiana passed a similar law but testing was limited, based on responses to a questionnaire.
  • Alabama considered a similar law, but decided job training was a more effective method of moving recipients off public assistance.

Tomorrow I’ll examine the racial stereotypes involved in the welfare debate. To me the bill feels like it’s a ‘witch hunt’ by the Kentucky Legislature, attempting to find ways of to make people less likely to apply for aid when they really need it.

What do you think?