Robert E. Gladd,
Thesis work-in-progress internet edition:

UNLV Institute for Ethics & Policy Studies

Chapter 1,
Drug testing policy environment and history

The war on drugs is in truth a war on some drugs, their enemy status the result of historical accident, cultural prejudice, and institutional imperative. The taxonomy on behalf of which this war is being fought would be difficult to explain to an extraterrestrial...Is it the quality of addictiveness that renders a substance illicit? Not in the case of tobacco, which I am free to grow in this garden. Curiously, the current campaign against tobacco dwells less on cigarettes’ addictiveness than on their threat to our health. So is it toxicity that renders a substance a public menace? Well, my garden is full of plants—datura and euphorbia, castor beans, and even the stems of my rhubarb—that would sicken and possibly kill me if I ingested them, but the government trusts me to be careful. Is it then the prospect of pleasure—of “recreational use”—that puts a substance beyond the pale? Not in the case of alcohol: I can legally produce wine or hard cider or beer from my garden for my personal use (though there are regulations governing its distribution to others). So could it be a drug’s “mind-altering” properties that make it evil? Certainly not in the case of Prozac, a drug that, much like opium, mimics the chemical compounds manufactured in the brain...

Someday we may marvel at the power we’ve invested in these categories, which seems out of all proportion to their artifice. Perhaps one day the government won’t care if I want to make a cup of poppy tea for a migraine, no more than it presently cares if I make a cup of valerian tea (a tranquilizer made from the roots of Valeriana officinalis) to help me sleep, or even if I want to make a quart of hard apple cider for the express purpose of getting drunk. After all, it wasn’t such a long time ago that the fortunes of the apple and the poppy in this country were reversed.

    - Michael Pollan, Opium, Made Easy: One gardeners encounter with the war on drugs, Harper’s Magazine, March, 1997

   While Mr. Pollan’s opening sentence is beyond dispute (as we shall confirm below), I will not be holding my breath with respect to his speculative musing in the latter paragraph above.

   For, our government “finds,” on the basis of myriad reports—derived principally from news stories and social science investigative methods of wildly variant quality—that the use of illicit drugs, particularly in the workplace, is a sufficiently adverse social and economic phenomenon to justify the coerced participation of millions of asymptomatic citizens as “donors” of bioassay specimens for chemical metabolite analysis to uncover the presence of forbidden psychoactive recreational toxins. Willing, even eager submission to non-cause drug testing is coming to be seen as the latest variant of the Loyalty Oath, with aspersions cast upon the motives and character of dissenters. Legions of survey researchers provide an endless outpouring of statistics purporting to demonstrate the alarming prevalence and horrific economic and epidemiological costs of drug abuse. Vendors of laboratory services assure us that their technologies are utterly reliable, that only the “guilty” need be concerned. It’s For Our Own Good, we are soothingly told.

   Is any of this so? Are the enabling laws and policies ethical and wise, grounded in coherent history and viable scientific data? Are such measures critical to public health and safety? Are the analytical procedures and technologies truly effective, and fail-safe to the point of negating reasonable concerns over the possibility of false accusation? Can the nation’s laboratory infrastructure deal competently with the already huge and rapidly increasing sample workload? Is such a forcible deterrence strategy the only feasible option available to us for promoting the health and welfare of both individuals and society as a whole?

   The questions are timely ones. A spate of expansive and harsh new drug testing legislative proposals is under consideration by the 105th Congress and state legislatures around the nation, and commercial vendors of analytical technologies are rushing to market patented (and, as such, potentially enormously lucrative) alternatives to the conventional urine and blood tests traditionally used in drug bioassay. There now exist methods that use hair and saliva samples, as well as a recently introduced “patch” that, when worn on the skin, ostensibly reveals the presence of illicit compounds. Also recently in the news were reports on the commercial availability of a $20 drug testing “smear kit” called DrugAlert™ that parents are being encouraged to use on their childrens’ clothing, furniture, and possessions if they suspect their kids of drug use. The kits are returned to the vendor for analysis, after which a “confidential” report of findings is mailed back to the parents.

   How did we arrive at such a state of alarm? The path leading to proposals for a panoptic metabolite surveillance state is a perplexing one.

A bit of historical perspective

   While reflexive prohibitionists have waxed ascendant since the early 1980s to dominate the official U.S. drug policy agenda, much scholarly, even-handed, and nuanced historical research is available from the federal government itself. One example will suffice here to provide an overview of drug use history and policy evolution in the United States. A 1979 monograph entitled Themes in Chemical Prohibition by William L. White (Drugs in Perspective, National Institute on Drug Abuse, 1979) summarizes the phenomenon clearly:

White examines eight core themes that drive the prohibitionist agenda:

  1. The drug is associated with a hated subgroup of the society or a foreign enemy.
  2. The drug is identified as solely responsible for many problems in the culture, i.e., crime, violence, and insanity.
  3. The survival of the culture is pictured as being dependent on the prohibition of the drug.
  4. The concept of controlled usage is destroyed and replaced by a domino theory of chemical progression.
  5. The drug is associated with the corruption of young children, particularly their sexual corruption.
  6. Both the user and supplier of the drug are defined as fiends, always in search of new victims; usage of the drug is considered contagious.
  7. Policy options are presented as total prohibition or total access.
  8. Anyone questioning any of the above assumptions is bitterly attacked and characterized as part of the problem. that needs to be eliminated.

One cannot but be struck by how little social and official attitudes have changed since 1979. Excerpts from each of the foregoing eight themes drive the point home:

   Anyone even mildly familiar with present-day War On Drugs rhetoric will readily note that the more things change, the more they remain the same.” The graphic below is emblematic of anti-drug attitudes during the 30’s and 40’s era of “reefer madness.” While current anti-marijuana rhetoric is a good bit more muted on the surface, modern drug prohibitionists continue to insist that cannibis is the “gateway drug” leading to inexorable “shame, horror, and despair.”

The War on Drugs from Nixon through Reagan

   In Smoke and Mirrors (1996, Little, Brown, & Co. NY) former Wall Street Journal reporter Dan Baum dates the beginning of the modern War on Drugs in 1967 as then-Presidential contender Richard Nixon and his advisors looked for a winning election strategy in the face of the problematic Vietnam war that so vexed the nation. A tough-on-crime posture would serve, with illicit drug use an opportune focus:

   Among the tools the Nixon Administration would soon employ were drug-sniffing canine searches for marijuana possession by U.S. troops in Vietnam, a policy that begat the unforeseen consequence of increased heroin use (quoting a Pentagon researcher):

Field commanders would soon pine for the days when the relatively benign cannabis “weed” was the G.I. intoxicant of choice. The first drug testing machine, an opiate-detecting “behemoth the size of an office desk,” would soon be deployed to address the far more serious heroin problem, and the era of mass drug screening was born.

   The drug issue proved to have sturdy domestic political “legs” that to this day stride with a forceful gait. In the early 1970’s, drug-related empirical hyperbole also took off with a zest that shows no signs of abating (see Chapter 2). Politicians fell all over each other trying to up the ante. Senator Charles Percy of Illinois, trying to one-up the drug-crime statistics proffered by George McGovern, asserted that “[T]he total cost of drug-related crime in the United States today is around $10 billion to $15 billion.” Virtually unnoticed went some inconvenient countervailing data:

   Equally hyperbolic was the resurgence of the “gateway drug” theory of marijuana use by the time Ronald Reagan took over the Presidency. Previously employed during the “reefer madness” antidrug campaigns prior to World War II, the gateway theory is but the classic post hoc, ergo propter hoc fallacy. Baum notes more inconvenient data:

Just Say No

   Ronald and Nancy Reagan would put the War on Drugs in high gear. First, there had to be a political make-over to neutralize the First Lady’s image problem. As John Gilliom recounts:

Mrs. Reagan would subsequently be heard to opine during the course of her much-publicized “Just Say No” campaign that “there is no moral middle ground; indifference is not an option,” and that drug users were “accomplices in murder.”

   Noted iconoclast author and Syracuse University Professor of Psychiatry, Dr. Thomas Szasz, in his recent book Our Right to Drugs, recounts in detail the 1980’s history of what he views as an utterly sinister practice reminiscent of the Soviet and Red Chinese practice of “denunciation,” one which got its “Joe McCarthy” rebirth in this country during the Reagan administration, and a practice that continues to this day:

   Szasz recounts a number of widely publicized episodes of children turning their parents in to the authorities for drug possession and use, noting how such tactics were (and continue to be) encouraged by law enforcement and other authorities. The Reagans themselves publicly applauded these acts, and the authorities responded with gusto:

   Reagan Administration Attorney General Edwin Meese, long an opponent of crime-fighting restrictions like the Miranda Rule, saw great potential in enlisting employers in the fight against illicit drug use through mandatory screening: “Since most Americans work, the workplace can be the chokepoint for halting drug abuse.” (Gilliom, p. 35, Meese quoted originally in NY Times, October 31, 1986)

   Two additional key administration operatives also added their efforts to the Reagan drug war. First, Dr. Robert L. DuPont, a psychiatrist and Reagan “Drug Czar” who would go on to become a tireless advocate for the commercial drug testing industry (more on Dr. DuPont elsewhere in this thesis). Second, the highly visible and forceful Dr. William Bennett, also to become a Reagan “Drug Czar,” despite his lack of training and experience in areas such as law enforcement and public health. Dr. Bennett saw illicit drug use in simple black and white: it was a moral issue, one bound to the dictates of authority. Once authority had spoken on drug use by declaring certain substances off-limits, users should suffer the penalties for transgressing. Bennett would brook no discussion of social or epidemiological “root causes” and “victimless crime” concepts. Drug users should pay dearly. Pay with their freedom, pay with their jobs.

While Bennett disdained any epidemiological analyses or addiction disease-model theories of drug use, he was not against using the epidemiological model when it suited his purpose. Dan Casse, a Bennett assistant, one day proposed a “contagion” model that might prove useful:

In epi-speak a “vector” is an organism that transmits a pathogen through the environment. The mosquito is the principal malaria “vector,” and so on. So, the otherwise prosperous and productive casual drug user could be targeted as a disease “vector” that had to be “quarantined” through tactics like drug screening and harsh economic legal sanctions. “I like it,” Bennett said. (Baum, p. 273)

   In other words, don’t set a bad example, or we’ll ruin your otherwise nice life for you.

   In 1986 Ronald Reagan issued Executive Order 12564 (“Drug-Free Federal Workplace Order”) which is generally regarded as a watershed event in the history of employee drug testing. A telling passage in E.O. 12564 makes perfectly clear the intent of his action:

   The “law-abiding behavior expected of all citizens...” Such compliance was to be enforced through the use of the employee drug test. Steven L. Nock observes:

   Once federal employees were ordered into routine laboratory scrutiny, legislation aimed at the private sector would not be far behind. The 1988 Drug-Free Workplace Act (41.USC.701 et seq.) is generally cited as justification for non-cause drug testing programs in the private sector. It requires that any business or institution receiving $25,000 or more per year in federal funds—directly or “indirectly”—have in place a documented “drug-free work place” program. While most administrators and executives are led to assume that the Act requires drug testing, the reality is that there is not one word in the legislation requiring nor even recommending testing. The act basically mandated that an elaborate “Just Say No” program exist on paper. The authors of the National Academy of Science Under the Influence? report observed that “Contractors were not required to implement a drug-testing program, but could do so in order to demonstrate compliance.”

   As we shall see in detail elsewhere in this work, however, legislation is afoot in Congress to put some teeth into workplace drug prevention by explicitly requiring drug testing throughout the public and private sectors. Leading the charge in the effort is the self-appointed Field Marshal of the War on Drugs, New York Representative Gerald B.H. Solomon.

The recent workplace drug abuse policy rhetoric environment

   As noted earlier by William White, policy advocates frequently employ the “War” metaphor (e.g., “War on Poverty,” “War on Cancer,” etc.) to underscore the urgency of their causes. Where drug abuse is concerned, “war” goes far beyond rousing imagery, with Constitutionally debatable paramilitary activities undertaken in foreign nations and aggressive military-style armed actions against domestic drug marketeer suspects.

   Moreover, the political and peer pressure to get on board and publicly demonstrate a home-front commitment to the War on Drugs causes otherwise reasonable people and organizations to indulge in ill-considered measures. For example, in 1994 Mellon Bank in Pittsburgh enacted a random drug testing policy, complete with an anonymous tip phone line. Mellon officials insisted “Nothing is wrong. [The bank] hasn’t lost large sums of money to fraud, or seen a sudden outbreak of violence in the workplace.” Jim Fauzio, Mellon’s Employee Assistance Program (EAP) Manager, allowed that the program “was not in response to any specific problem or event.” Mellon officials claimed their intent as simply that of good, concerned corporate citizens. Similarly, the Charlotte, North Carolina Chamber of Commerce joined in 1994 in a hard-sell campaign to encourage all employers in the area to begin drug testing. Their literature included the exhortation: “Don’t be the last company to start drug testing.” Hewlett-Packard also succumbed, taking the policy a step further to include even the company’s independent contractors; San Francisco-based technical writer Bill Knutson had worked for HP for years in a contracting capacity, working offsite using his own computer equipment. The company informed him in 1995 that henceforth he would have to submit to drug testing as a condition of further work assignments. HP public relations official Mary Lou Simmermacher said simply that “the company decided to follow the lead of other companies” in enacting the drug testing policy. She offered no information indicating that a drug abuse problem existed at Hewlett-Packard Corporation.

   Drug and Alcohol treatment centers, always on the lookout for opportunities to fill empty, expensive beds, eagerly joined in. A typical pitch is seen in the media campaign by Peninsula Hospital of Knox County, Tennessee, whose primary ad slogan in the late 1980’s and early ‘90’s was “We Can Help Even Those Who Don’t Want Help.” Implicit in the appeal: Turn your loved ones and acquaintances in. It’s for their own good.

   Just don’t forget to bring their insurance cards.

   One last example of this phenomenon: The leading commercial drug testing vendor in Las Vegas has repeatedly run a large, multi-column newspaper display ad admonishing, in bold letters, that “If you’re not pre-employment drug testing, you’re hiring the rejects of those companies that do.” No data are, however, provided to buttress such a blanket assertion, an allegation some might consider a libel toward the predominantly drug-free workforce. At the very least, such a broad claim constitutes false advertising, given what we know about reasonably estimated drug use prevalence rates in the work place.

Dissent disallowed

   Naive business policies aside, the more important casualties of our drug siege policies include our democratic tradition of open debate of policy alternatives. Wartime gag rules are advocated; Lee Brown, former head of the U.S. Office of Drug Control Policy, immediately reacts on national TV to reports of Surgeon General Joycelyn Elders’ statement proposing scientific study of legalization issues by stating that “there will be no discussion of the legalization of drugs; even the discussion is harmful.” Former “Drug Czar” William Bennett asserts that “responsible intellectuals shouldn’t discuss the possibility of drug legalization.” Former Los Angeles Police Chief Darryl Gates, testifying before Congress, argues that even casual drug use is “treason” and that such users ought be “taken out and shot.” (He later assures reporters that he is not merely indulging in hyperbole.)

   Or note the reaction to a federal commission report recommending the equalization of sentencing guidelines pertaining to criminal convictions involving “crack” a.k.a. “rock” cocaine versus the powdered form. The panel observes that, while the pharmacological effects of crack use are clinically equivalent to those of powdered cocaine, prison terms for crack offenders are many times more severe than are those involving powdered coke; in addition, nearly all crack cocaine convictions involve black defendants, whereas the majority of powdered cocaine offenders are white. Since white cocaine offenders are, on average, subject to far less severe prison sentences, and, are much more likely to be diverted to “treatment” than are blacks, some have argued that the current policy is inherently racist. President Clinton, smarting from charges of laxity and anxious to appear “tough” on the drug issue, curtly dismisses the commission’s recommendation out of hand:

The White House
Office of the Press Secretary
For Immediate Release October 30, 1995
Statement By The President

Today I reject United States Sentencing Commission proposals that would equalize penalties for crack and powder cocaine distribution by dramatically reducing the penalties for crack...I am not going to let anyone who peddles drugs get the idea that the cost of doing business is going down.

   President Clinton would soon thereafter exhort first-time teen-age driver’s license applicants to step up and show their support, and “do the right thing” to set a good example by voluntarily submitting to drug testing as a condition of licensing.


   The foregoing provides but a brief yet sufficient overview of the history and political climate that comprise the “background noise” of drug policy, a psychic pollution which contaminates and frustrates all attempts at rational and ethical policymaking in this area. We continue in Chapter 2 with a look into the sorry state of recent and contemporary drug policy data gathering and analysis.

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