Legislation in Florida to Force Welfare Recipients to Prove They Are Not Drug Users

Legislation recently implemented in Florida will force all welfare recipients to undergo suspicionless drug tests to prove they are not drug users. The state legislature is set to impose suspicion-less drug tests as a prerequisite for receiving welfare benefits. Not only will the law reverse the presumption of innocence, it will mean that those who test positive will lose their eligibility to receive state benefits which will only exacerbate their situation and perhaps those of their children.

Florida governor Rick Smith claims that the legislation is “the right thing for citizens of this state that need public assistance. We don't want to waste tax dollars. And also, we want to give people an incentive to not use drugs."

Such political showboating is proving popular amongst those who believe that money is being deducted from their paycheques to fund lazy drug addicts’ lifestyles when they ought to be grafting in the countless jobs available in the current prosperous economic climate.

Aside from the fact that welfare recipients are, according to the US Department of Health, statistically no more likely to abuse drugs than those that work, proponents of the law fail to understand that welfare recipients, particularly those who do use drugs, are victims of a witch-hunt.

In fact, the US federal government already has laws in place which seem to circumvent the constitutional rights of welfare recipients. Such policies include the ability of authorities to search homes of welfare recipients, infringing their right to privacy, to see what the assistance money is being spent on. The new law further stigmatises a vulnerable group of people, many of whom are unemployed due the harsh financial climate.

However, federal laws are even more draconian where welfare recipients are also drug users. Drug users have already seen their level of human rights drop to a standard below which the US constitution protects. Those who have been convicted of drug felonies are barred from receiving federally funded food stamps under the auspices of the Welfare Reform Act. This is in addition to facing employment discrimination, disenfranchisement in certain states and denial of certain educational opportunities. Therefore under the proposed law, in addition to being disentitled to all of the above or federally funded cash benefits, welfare recipient drug users will be subject to mandatory drug testing to determine their eligibility for Florida state benefits. If they test positive, then further sanctions ensue.

Ultimately this means drug addicts will look for alternative cash revenues to fund their habit; perhaps by prostituting themselves if they are woman, or maybe by stealing the computer that you are reading this article on.

This article does not seek to review or summarise the reasons why this legislation is doomed to create more problems than it solves as this has been covered elsewhere. Harold Pollack has covered this in his article: “Drug Testing Welfare Recipients – False Positives, False Negatives, Unanticipated Opportunities”.

Instead, this article intended to critique similar schemes in other countries. Unfortunately, after contacting many drug charities in other countries (even other zero-tolerance countries) it was impossible to find comparable legislation.

One reason for this is down to human rights. As mentioned above, the US has a history of not respecting the privacy rights of welfare recipients and drug users. This is in contrast to other western democracies where national and supranational law appears to prohibit such legislation from ever being enacted. Similarly, a greater acceptance of welfare in other countries similarly makes it difficult for similar measures being enacted.

Countries across the EU, like America, allow varying degrees of drug testing on employees. In many EU countries, specific provisions are made on this subject. Nevertheless, despite the variation in approaches, general rules have developed. Firstly, drug testing as a means must be proportionate to result it seeks to achieve. The intrusion of the person’s right to privacy must be balanced with the rights of other members of the public. What this means in practices it that drug tests are considered legitimate where the nature of the employee’s job requires that person to be free from the influence of drugs otherwise that employee could pose a health of security threat to other persons. A clear example would be an airline pilot. Secondly, if the job does not require the person to be free from the influence of drugs, then suspcionless drug testing will not be considered legitimate. However, if the person is suspected of using drugs then they may be subject to legitimate drugs tests.

With these general principles appearing to be the state of the law, it would therefore seem impossible to apply suspicionless drug testing on a class of people who do not work in jobs, let alone ones which adverse influence could endanger the public. Any form of drug testing would be a disproportionate strain on the right to privacy.

Another possible reason why other countries have not adopted similar policies is that they are parties to the International Covenant on Economic, Social and Cultural Rights. Under articles 11-13, all citizens of states to the treaty are entitled to basic welfare. Therefore, countries that have ratified this treaty cannot create law which would make the provision of negative drug tests as a condition for receiving welfare benefits. That is not to say other countries cannot impose sanctions; but the measures are less aggressive. Most governments have either switched or are in the process of switching to a treatment based approach to drug users. The US policy still appears to be its cavalier Law and Order approach by trying to catch drug users out and punishing them to full extent of the law. It therefore might not surprise you to find out that the US has signed but not ratified the International Covenant on Economic, Social and Cultural Rights. Conservative lobbies and think-tanks see the aforementioned Covenant as a toxin which, if enacted, would bring in universal healthcare through the back door.

There is also no guarantee that the drug testing will be fair. Recently in the US, police officers have faced allegations that they are using pseudo-scientific tests which provide false positives on suspected drug users. If substantiated, it suggests that the welfare recipients who will be compelled to prove their innocence may not even receive a fair test.

All in all, the new law is worrying. Despite the fact that many states had previously considered similar laws to be impractical and fiscally reckless; many states are now looking to implement similar measures. Not only is it infringing upon the rights of a vulnerable demographic which are statistically no more likely to use drugs than the typical adult population, but it is an infringement which is completely disproportionate to its aim. This is unless of course, the real aim is continue trying to catch more drug users to demote them to second class citizens without the right to food and opportunity.

Reassuringly, however, a previous experience of a similar law in Michigan resulted in the US Court of Appeals (Sixth Circuit) striking the law down shortly after it was challenged by the ACLU. The court (upholding the ruling a lower court) rendered the law as unconstitutional. Let’s hope the new law will also be struck down for what it is: an infringement on welfare recipients’ right to privacy.

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