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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us 6 Sanctions Against Users of Illegal Drugs As traditionally conceptualized, the two prongs of drug control policy are supply reduction and demand reduction. Supply reduction is usually understood to be synonymous with enforcement of drug law prohibitions and international interdiction activities, whereas demand reduction is usually thought to encompass clinical treatment of drug abuse and addiction as well as the spectrum of activities aiming to prevent youths from using drugs (e.g., media campaigns, school-based education programs). This conceptualization is imperfect for two reasons. First, a large component of drug law enforcement focuses directly on reducing demand (e.g., apprehending and punishing users for possessing drugs). Second, the standard menu of demand-reduction activities tends to overlook (or take as given) the rich fabric of deeply ingrained social controls against illicit drug use, including legal controls. LEGAL SANCTIONS AND SOCIAL CONTROL In this chapter, the committee addresses sanctions against using drugs within the broad framework of social control. In people’s daily lives, almost all of their behavior is shaped, channeled and controlled by the expectations and norms embedded in their relationships with their families, friends, teachers, employers and various social groups and organizations, and these norms and expectations vary substantially over the life course. Informal social controls may discourage drug use or, conversely,
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us may encourage and reinforce it, depending on the social and developmental context. Some norms and expectations discouraging drug use (including alcohol and tobacco use) are formalized and “enforced” in social groups and organizational settings through various mechanisms of social discipline; sometimes such “private” sanctions are explicitly permitted and enforced by law (e.g., dismissals for using illegal drugs or alcohol on the job or for testing positive for illegal drugs). A central point of dispute in the drug policy debate is the nature of the link between the drug laws and other forms of social control against drug use. On one side, defenders of strong prohibitions and severe penalties argue that these laws are needed to express, symbolize, and undergird social norms against drug use (DuPont, 1996). On the other side, critics of harsh penalties and zero-tolerance policies argue that over-reliance on formal controls can displace or weaken informal controls, especially when the intrusiveness and severity of the laws generate social alienation and discord (National Commission on Marihuana and Drug Abuse, 1973; Erickson, 1993). Despite its importance, the relationship between law and other forms of social control is poorly understood (Black, 1976; Ellickson, 1987), although the “expressive” function of law, and its relation to social norms, are receiving increasing attention in the legal literature (Lessig, 1995; Sunstein, 1996). Sanctions against drug use are a preeminent feature of policy on illegal drugs, yet very little is known about the actual effects of these sanctions on drug use (independent of the effects of other social controls). Some observers have argued that enforcement of sanctions against users imposes substantial costs on individuals and on society without a demonstrable preventive effect beyond that achieved by the underlying illegality of the drug and strong social disapproval (New York County Lawyers’ Association, 1996). Supporters of these sanctions argue that strong penalties against use, including criminal punishment, are necessary to deter drug use, to facilitate treatment of drug users, and to register social disapproval in the strongest possible terms—often called “zero tolerance” (DuPont, 1996). These arguments raise important empirical issues regarding the declarative, deterrent, and therapeutic effects of criminal punishment and other sanctions. This chapter addresses these issues. PROHIBITIONS AND PUNISHMENT A comprehensive regime of state and federal laws proscribes production and distribution of illegal drugs for nonmedical, nonscientific purposes. Standing alone, these prohibitions vividly express the society’s opposition to nonmedical use of these drugs, while curtailing legitimate access and confining the drugs to an illicit market. Chapter 5 addresses
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us what is known about the preventive effects of various methods of enforcing prohibitions against trafficking in illegal drugs. The question of interest in this section is what is known about the added preventive effects achieved by prescribing and enforcing sanctions against users. Possession of any amount of illegal drugs is a crime under both federal and state law, typically punishable by incarceration. (The only exception is possession of small amounts of marijuana, which, in a handful of states, is punishable only by a fine.) Although possession offenses are typically prosecuted as misdemeanors, punishable by up to a year in the local jail, about 30 states classify possession of opiates or cocaine as a felony, punishable by a prison term and all the collateral consequences that accompany a felony conviction, such as loss of occupational licenses and the right to vote. In addition, all states punish possession of drug paraphernalia, including syringes, and other consumption-related behavior. Enforcement The federal government concentrates its enforcement effort on trafficking offenses—only 2 percent of the 27,000 federal drug arrests in fiscal year 1998 were for possession, and most of these were misdemeanor arrests in the District of Columbia. By contrast, 80 percent of the drug arrests made by state and local law enforcement agencies are for simple possession (i.e., possession of small amounts without evidence of intent to distribute).1 More than 1.2 million arrests were made for drug possession offenses in 1998, and half of these were for possession of marijuana (Bureau of Justice Statistics, Drug and Crime Facts). The proportion of these arrests resulting in criminal convictions is unknown. Most people convicted of simple possession are sentenced as misdemeanants to probation or, in cases involving repeat offenders, short terms in local jails. (In 1996, for example, 11.3 percent of all jail inmates were incarcerated for a drug violation as their most serious offense.) However, more than 135,000 persons were convicted of felony possession charges in 1996, representing about 14 percent of all state felony convictions (Brown and Langan, 1999). And 70 percent of these offenders were sentenced to prison (29 percent) or local jail (41 percent). The mean maximum sentence length for felony drug possession offenders serving prison time was 42 months; for those sentenced to local jails, the mean maximum sentence was 5 months. One of every seven drug arrestees in 1997 was a juvenile (Snyder, 1998). The number of juveniles arrested for drug offenses has increased 1 Simple possession excludes possession with intent to sell drugs. Although some traffickers are convicted of simple possession as a result of plea agreements, most possession offenders are users, not dealers.
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us markedly since the 1980s. More than 220,000 juveniles were arrested for drug offenses in 1997, representing an 82 percent increase since 1993. In about 15 percent of all juvenile arrests in 1997, the most serious charge was a drug abuse violation, a liquor law violation, drunkenness, or driving under the influence. Between 1993 and 1997, the juvenile arrest rate for drug abuse violations (arrests per 100,000 juveniles ages 10–17) increased more than 70 percent. A similar pattern can be seen for curfew and loitering violations. Most juvenile drug arrestees are processed in juvenile court (Stahl, 1999). Drug delinquency arrests processed in juvenile court (176,300) rose 143 percent between 1992 and 1996. Of these cases, delinquency petitions were filed in 109,500 (62 percent). About 60 percent of these drug delinquency petitions resulted in findings of delinquency (the juvenile-court equivalent of a “conviction”) and about 25 percent of the delinquent offenders were placed in a residential facility. The enforcement of sanctions against juveniles merits special attention for several reasons. First, preventing youths from initiating drug use or becoming regular users is one of the central goals of national drug policy. Second, youths are subject to a stronger and more diverse array of antidrug sanctions and controls than any other group in the population. The key policy question is whether the incremental preventive effect of enforcing these sanctions is sufficient to offset the costs of imposing them, including their counterproductive effects on the life prospects of young offenders (National Research Council, 2001). Effects on Drug Use In Chapter 8, the committee addresses the effects of enforcing sanctions against apprehended users on their subsequent drug use, concentrating particularly on the utility of intervention as an instrument of therapeutic leverage. In this section, however, we are interested in how prescribing and enforcing sanctions against drug users may function, at the population level, as an instrument of primary prevention. Sanctions against users may depress prevalence in two ways: by expressing social norms against drug use (declarative effects) and by dissuading people from using drugs due to fear of being apprehended and punished (deterrent effects). Declarative Effects Laws against drug use may generate declarative effects by expressing social disapproval of drug use and thereby symbolizing and reinforcing social norms against drug use and helping to shape individual beliefs and
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us attitudes (Bonnie, 1981a). To the extent that these norms are rooted in moral antipathy toward drug use, strong sanctions against the behavior may also generate moralizing effects. (Andenaes, 1974; Zimring and Hawkins, 1973). It should also be noted, however, that under conditions of normative ambiguity or discord, punitive sanctions may also generate “reactance” in an alienated population and might actually provide an inducement for violation through a “forbidden fruit” effect. It is often suggested that laws against use of illegal drugs and underage use of alcohol and tobacco have such effects, although there is little direct evidence of this (MacCoun, 1993). The empirical literature bearing on the declarative effects of legal sanctions is scant, mainly because it is so difficult to distinguish these effects from deterrent effects or to disentangle the effects of preexisting social norms and informal controls from the declarative effects of formally prescribed sanctions. In one of a series of studies investigating this issue, Grasmick et al. (1991) showed that an antilittering campaign increased the likelihood of compliance because people felt that violating the norm would be an occasion for shame or embarrassment. Similarly, substantial increases in seat belt use and child restraint after enactment of mandatory legal requirements appear to be attributable primarily to declarative effects (in this case, probably a pedagogical effect) rather than deterrence (Institute of Medicine, 1999). (Interestingly, proponents of so-called primary enforcement of seat belt laws—allowing a penalty for failing to wear a seat belt even if the driver has committed no other violation—argue that an increase in the deterrent threat is now needed to increase the rate of seat belt wearing beyond current levels.) No studies have successfully isolated the declarative effects of sanctions against use of illegal drugs from their deterrent effects. General Deterrence It is generally assumed that sanctions against drug use also depress the prevalence of drug use through deterrence—i.e., potential users refrain from initiating or continuing use due to fear of being punished. According to the basic postulates of deterrence theory, persons considering using drugs will weigh the expected utility of the behavior against the subjectively perceived risk of punishment. The deterrent effect of a legal threat is thought to be a function of the severity of the threatened sanction, the probability that it will be imposed and, under some circumstances, the swiftness with which it is applied. In general, research on the relation between perceived risk of detection and punishment and self-reported drug use tends to show that perceived legal risk explains very little of the variance in drug use (MacCoun,
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us 1993). Similarly, studies of the relation between prevalence of drug use and variations in legal penalties for drug use tend to find no relationship. For example, Chaloupka et al. (1998) found, using the Monitoring the Future survey data from 1982 and 1989, that variations in length of prison terms prescribed by state law were unrelated to prevalence or frequency of cocaine or marijuana use by high school seniors. They also found that substantial increases in prescribed fines would have little or no effect. These findings are unsurprising because, under present enforcement conditions, the deterrent effect of criminal sanctions against drug use is attenuated significantly by the low probability of detection for any given violation and even for repeated violations. Other factors, including the perceived benefits of drug use, fear of health-related risks, and informal social controls, may have a more significant influence on decisions about using drugs than legal deterrence. As in the case of underage alcohol and tobacco use, current enforcement may have a stronger effect on where people carry or use drugs, rather than on whether they do so. The issue most extensively studied has been the impact of decriminalization on the prevalence of marijuana use among youths and adults. Penalties for possession of small amounts of marijuana for personal use were significantly reduced in 11 states in the 1970s (Bonnie, 1981b). All of these laws preclude incarceration for consumption-related marijuana offenses, making the offense punishable only by a fine, and most also classify the offense in a category (typically a civil infraction) that does not carry the stigmatizing consequence of having been convicted of a crime— hence the term “decriminalization.”2 Most cross-state comparisons in the United States (as well as in Australia; see McGeorge and Aitken, 1997) have found no significant differences in the prevalence of marijuana use in decriminalized and nondecriminalized states (e.g., Johnston et al., 1981; Single, 1989; DiNardo and Lemieux, 1992; Thies and Register, 1993). Even in the few studies that find an effect on prevalence, it is a weak one. For example, using pooled data from the National Household Survey of Drug Abuse for 1988, 1990 and 1991, Saffer and Chaloupka (1995) found that marijuana decriminalization increased past-year marijuana use by 6 to 7 percent and past- 2 The term “decriminalization” has sometimes been misunderstood to refer to “legalization” (i.e., making drugs legally available for nonmedical uses, as in the case of alcohol). However, as used by experts in criminal law and popularized by the National Commission on Marihuana and Drug Abuse in 1972, “decriminalization” refers to the repeal of criminal sanctions against possession for personal use, even though the drugs remain contraband and commercial access remains prohibited. The erroneous association between decriminalization and legalization has led some commentators to abandon the term in favor of “depenalization” to refer to these more lenient marijuana laws.
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us month use by 4 to 5 percent. Using Monitoring the Future survey data for 1982 and 1989, Chaloupka et al. (1998) estimated that decriminalizing marijuana in all states would raise the number of youths using marijuana in a given year by 4 to 5 percent compared with the number using it when marijuana use is criminalized in all states; however, they also found no relationship between decriminalization and past-month use or frequency of use. It is worth emphasizing that any prediction of increased use after a reduction or elimination of penalties against users depends on awareness of the decriminalized status of the behavior. Although laws decriminalizing marijuana use typically received a great deal of publicity when they were adopted, it appears that most people in these states no longer have the impression that marijuana penalties in their states are distinctively different from marijuana penalties in other states (MacCoun and Reuter, 2001). In the absence of a salient and persistent impression that penalties for marijuana use are distinctly more lenient than penalties in other states, one would not expect prevalence of marijuana use to differ significantly in the decriminalized jurisdiction when compared with neighboring jurisdictions. In summary, existing research seems to indicate that there is little apparent relationship between severity of sanctions prescribed for drug use and prevalence or frequency of use, and that perceived legal risk explains very little in the variance of individual drug use. However, there are many gaps in current knowledge concerning the declarative and deterrent effects of prescribing and enforcing penalties for drug possession. Studies thus far conducted have been limited in several ways. First, existing research uniformly focuses on the effect of prescribed penalties. However, sanctions prescribed by statute do no more than set the outer boundary within which highly selective judgments are made by police, prosecutors, and judges. Virtually nothing is known about the deterrent impact of variations in enforcement on drug use or about the conditions under which deterrence can be increased. Second, deterrence studies typically rely on general population surveys to provide measures of undeterred drug use. However, the actual probability that sanctions will be imposed on violators differs widely across demographic groups, and it has been repeatedly demonstrated that persons arrested and punished for using drugs differ significantly from the population of users (Husak, 1992; Kleiman and Smith, 1992; Zimring and Hawkins, 1992; Tonry, 1995). Third, very few studies have included the use of opiates or cocaine as the dependent variable. Most have tested the deterrent effects of punishment and social control on alcohol or marijuana use, drunk driving, or other crimes that have higher base rates (e.g., Meier and Johnson, 1977;
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us Ross, 1984). Since both social and legal sanctions for these crimes are relatively less severe than the penalties for opiate or cocaine offenses, the findings have limited generalizability. Deterrence research on opiate and cocaine offenses must also take account of the significant overlap between use offenses and distribution offenses. Most users are not dealers, but some become involved in dealing to support their habit. Finally, most empirical studies on the general deterrent effects of law and social control have proceeded on a separate track from studies on the specific deterrent effects of punishment. This bifurcation of the empirical literature has led some researchers to suggest a revised, “perceptual deterrence” framework that incorporates both direct (arrests, incarceration) and indirect (friends’ and acquaintances’ experiences) punishment experiences in the conceptual model (Stafford and Warr, 1993). As recommended by a study by the Institute of Medicine (1996), a new generation of research on the deterrence of drug use should be based on a model that integrates legal deterrence into a social control framework. This model would encompass a broad range of elements relating to the perceived costs and benefits of drug use. Such elements include economic costs (e.g., money and search time), personal costs (e.g., risks of dependence, disease, and violence); social, physiological, and psychological returns (e.g., pleasures, status, lifestyle); actual and perceived direct costs of punishment (e.g., arrest, incarceration, loss of income or drugs); social costs of punishment (e.g., job or relationship loss; see Williams and Hawkins, 1989); and motivational components (e.g., risk taking and sensation seeking). A research agenda on deterrence should also recognize the distinctions in deterrent effects across populations of drug users and in different sectors of society. Research should also take adequate account of the balance of motivations and restraints on drug use, including both external restraints from threatened legal sanctions and internal restraints reflecting social and moral inhibitions. The threat of punishment carries different weight for different people, depending on their personal circumstances. Differences in the effects of legal controls on illegal behaviors may reflect not only individual factors, but also the effects of contextual variables that either strengthen or neutralize the effects of legal controls—for example, by increasing the returns from drug use (or drug dealing) or by discounting the social costs of arrest and punishment. Many of these factors reflect the structure of opportunities and controls at the neighborhood or community level. In some cases, neighborhood effects powerfully reinforce legal deterrents to drug use. In other cases, neighborhood effects can delegitimize law and reinforce involvement with drugs (Tonry, 1995).
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us Other Considerations Prescribing and enforcing punishments for drug use potentially contribute to the instrumental goals of drug control policy mainly by depressing the incidence, prevalence, and frequency of consumption. However, enforcing these laws can also facilitate treatment of arrested users (see Chapter 8). Rational drug control policy must also take into account the costs of enforcing sanctions against users in order to address the cost-effectiveness of different enforcement strategies, or to assess whether the benefits of a given approach bear a reasonable relationship to the costs, thereby confronting one of the critical issues in the drug policy debate. These costs include expenditure of resources for policing and for processing these cases; the losses attributable to stigmatization and imprisonment (see Demleitner, 1999; Erickson, 1993); and the negative impact on perceived legitimacy of the drug laws and on respect for the legal system, an effect that can also undermine the moral basis of obedience (Tyler, 1990). The committee recommends that the National Institute of Justice and the National Institute on Drug Abuse collaboratively undertake research on the declarative and deterrent effects, costs, and cost-effectiveness of sanctions against the use of illegal drugs. Particular attention should be paid to the relation between severity of prescribed sanctions and conditions of enforcement and the rates of initiation and termination of illegal drug use among different segments of the population. LOSS OF BENEFITS AND PRIVILEGES In the Anti-Drug Abuse Act of 1988, Congress invoked a new category of sanctions for drug offenders to augment the criminal sanctions imposed by state and federal law. Under the act, federal and state judges are authorized to deny 460 types of federal benefits to persons convicted of any drug offenses, including simple possession. Benefits that may be denied or revoked include student loans and small business loans (Sullivan, 1989). In 1990, Congress directed the secretary of transportation to withhold a portion of a state’s highway funds (beginning in 1993) unless it enacted laws mandating suspension of driving licenses for at least six months for all drug offenders, regardless of age (or unless the governor or legislature explicitly refused to do so). About twenty states have adopted such provisions, which typically apply to both drug and alcohol offenses. (Some state courts have struck down these statutes as applied to cases in which the predicate drug offense is unrelated to the operation of a motor vehicle.)
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us The Anti-Drug Abuse Act, as amended in 1990, requires public housing authorities to include lease provisions providing that drug-related activity on or near the premises is cause for termination of the lease, even in the absence of arrest or conviction for a drug offense, and also made lease holders subject to forfeiture for drug-related activity. In 1997, the Department of Housing and Urban Development promulgated a “one-strike” regulation empowering public housing authorities to terminate a resident’s tenancy for “any drug-related activity on or near the premises,” including activity by “a tenant, any member of the household, a guest or another person under the tenant’s control.” Application of this policy to persons other than tenants, including guests or adult children who do not live in the covered housing, and eviction of entire households because of a violation by one of its members, have been challenged in court, largely unsuccessfully (see Weil, 1991; Yoskowitz, 1992; Mock, 1998). The impact of this policy on drug-related activity does not appear to have been evaluated, either as a deterrent or as a mechanism to enable willing communities to root out local drug markets. The precedent established by the 1988 act was extended in 1996 to welfare benefits. Section 115 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 permanently denies food stamps or cash assistance to persons convicted of a drug felony. Although the federal law allows states to opt out of the ban, only eight have done so, and some states have gone further, excluding drug felons from state assistance programs as well as the federal program. A few states modified the ban to apply only to persons whose convictions were for drug trafficking (rather than possession), or to exempt persons who are enrolled in or who have successfully completed drug treatment (National Governor’s Association, 1997). Although it has been estimated that Section 115 permanently denies welfare eligibility to as many as 200,000 people per year (Harvard Law Review, 1997), data regarding its application are not available. The ban on welfare benefits is under constitutional challenge. Its defenders rely on both the declarative effects (emphasizing the need to promote personal accountability) and the deterrent effects. Critics of the welfare ban argue that it has a disproportionate impact on minority women, that loss of economic support increases the already heightened risk of abuse and neglect in families without stable income and housing, and that loss of support will also increase foster care costs. Insofar as the committee can ascertain, the welfare ban has not been evaluated. These practices raise two important questions regarding the premises and consequences of current policy on illegal drug use. First, and most important, what is the added value of benefit deprivation in deterring drug use or registering social disapproval? These laws add drug-specific
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us deprivations to the criminal sanctions for drug offenses (e.g., confinement, fines) and the typical collateral consequences of all criminal convictions (including loss of the right to vote if the conviction is for a felony). For some, these supplemental sanctions may be justified simply because people who use illegal drugs are not deserving of assistance by the state. However, in the absence of such an independent moral justification, the instrumental argument for these sanctions would appear to be that threatened loss of student loans, driver’s licenses, and welfare benefits augments deterrence, promotes user accountability and suppresses the demand for drugs. At the present time, however, there is no evidence one way or the other regarding whether these added noncriminal sanctions (denial or revocation of privilege or benefits) exert any additional deterrent effect. Second, what are the costs or side-effects of these practices? In some ways, this is a subset of more general questions now being raised about the costs of stigmatization associated with criminalization of drug offenders, including the consequences of imprisoning, as felons, such a large proportion of the nation’s young black male population (Nagin, 1998). However, the specificity of the supplemental sanctions for drug offenders (denial of housing and welfare benefits) raises further questions about the desirability of further stigmatizing people who have used illegal drugs. Denial of benefits and privileges implicates a key ethical issue in drug abuse prevention. Sanctions and punishments, of whatever kind, exert their preventive effects at the population level—by symbolizing strong social disapproval and thereby reinforcing drug-free social norms, by deterring initiation by youths, and by encouraging recreational users to terminate use as they move into traditional social roles. However, denial of benefits and privileges intended to maintain normative disapproval and credible deterrent threats, tend to fall largely on the most disadvantaged part of the population. The committee recommends that the National Institute of Justice and the National Institute on Drug Abuse collaborate in stimulating research on the effects of supplemental sanctions, including loss of welfare benefits, driver’s licenses, and public housing, on the use of illegal drugs. EMPLOYMENT SANCTIONS In 1986, President Ronald Reagan issued an executive order directing federal agencies to establish a comprehensive employee drug testing program, setting the stage for adoption of drug testing policies throughout the workforce. In 1989, the National Drug Control Strategy, predicted that workplace drug testing would prove to be a powerful deterrent to drug
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us use (1989:57): “Because anyone using drugs stands a very good chance of being discovered, with disqualifications from employment as a possible consequence, many will decide that the price of using drugs is just too high.” The American Management Association reports that the proportion of its 700,000 members operating drug testing programs rose from 21 percent in 1987 to 81 percent by 1996 (American Management Association, 1999). Similar trends are reported by the nation’s largest companies. The percentage of medium-to-large firms using some form of drug testing nearly doubled from 32 percent in 1988 to 62 percent in 1993 (Hartwell et al., 1996). However, despite these trends among larger firms, small businesses do not require drug testing. According to the National Household Survey of Drug Abuse in 1994, one third of adults in the workforce reported that their employers operate a drug testing program. About 14 percent of the employed respondents reported that their employers tested only at hiring, whereas the remainder (18 percent) reported that their firms conducted random postemployment testing (Hoffman and Lavison, 1999). Under a random testing protocol, employees are automatically selected for periodic testing in the absence of any dangerous incident or individualized suspicion. Some employers limit the classes of employees subject to random testing to “safety-sensitive” positions, requiring only “for-cause” testing for other employees. Presumably, a large proportion of employers conduct for-cause testing on the basis of an injury or suspicion of intoxication or impairment. Forcause testing is uncontroversial because it is generally perceived as fair and most likely helps to deter workers from becoming intoxicated on the job. Because random testing is the only policy likely to exert a significant deterrent effect on whether workers continue to use drugs at all, this discussion focuses exclusively on this practice. In the public sector, drug testing practices are circumscribed by the Fourth Amendment’s ban against unreasonable searches. In general, random testing of public employees is permissible if the program applies only to employees holding safety-sensitive positions or perhaps to positions implicating the integrity of the agency’s mission. Otherwise, the courts have ruled that random testing constitutes an unreasonable invasion of employee privacy (Harmon v. Thornburgh, 878 F 2d 484 (D.C. Cir. 1989) cert, denied 493 U.S. 1056, (1990)). In the private sector, the law generally leaves employers free to adopt whatever testing policy they choose. Federal law encourages drug-free workplaces, and drug testing is explicitly authorized under the Americans with Disabilities Act. (This act prohibits disability-based discrimination against persons with histories of drug addiction as long as they are not currently using illegal drugs.) The practice of drug testing is unregu-
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us lated by most states. However, at least eight state legislatures have prohibited random testing of employees in positions that are not safety-sensitive, and a few state supreme courts have embraced a similar approach in the absence of legislative action. As indicated, however, the law in most states leaves employers free to adopt a random testing program for all employees, and it appears that many employers have done so. The question of interest is whether the expanding practice of workplace drug testing deters drug use by employees.3 In 1994, the National Academies’ Committee on Drug Use in the Workplace concluded that the preventive effects of drug testing have never been adequately demonstrated and that there existed no conclusive “scientific evidence from properly controlled studies” that employment drug testing programs widely discourage drug use or encourage rehabilitation. Subsequent research has provided some additional evidence bearing on the deterrent effect of drug testing in the military, but this evidence does not cast much light on the effect of testing in civilian employment. Testing in the Military In the U.S. military services, random testing is required of the entire workforce and, since 1995, all services have automatically imposed a severe sanction (discharge) on all violators. Two recent studies yield some evidence that the military’s zero-tolerance drug policies, including routine drug testing (adopted in 1980), have deterred illegal drug use among enlistees. One study, by Bachman et al. (1999), based on the longitudinal panel data from the Monitoring the Future survey, tracked cohorts of seniors (classes of 1976 to 1995) for two years after graduation, and compared active-duty recruits with nonmilitary classmates who entered college and civilian employment. The study found that the prevalence of marijuana or cocaine use before graduation was about the same among seniors who chose to enlist in the military as it was among those who chose to go to college or enter the civilian workforce. However, during the follow-up interview two years 3 There are other goals that could be served by employee drug testing, including screening employees to identify applicants or employees at high risk for impaired performance or reduced productivity. However, a 1994 National Academies report found that “clear evidence of the deleterious effects of drugs other than alcohol on safety and other job performance indicators” is lacking (National Research Council, 1994:107). Random testing is a costly and imperfect method of identifying poorly performing employees (Rothstein, 1991). Direct testing of performance, for-cause testing of apparently intoxicated workers, or— possibly—random testing of employees in safety-sensitive positions would be much more cost-effective.
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us later, the prevalence of marijuana use and cocaine among people on active duty was substantially lower than it was among their classmates. Although it is possible that the self-reports by active-duty personnel are less trustworthy than those of other respondents, the data are suggestive of a deterrent effect and also tend to show, somewhat surprisingly, that there was no substantial self-selection (i.e., high school drug users were no less likely than their peers to enlist in the military), even though such a self-selection effect was evident for smokers after the military toughened its smoking policies in the late 1980s. The second study, conducted by Mehay and Pacula (1999), used data from the National Household Survey of Drug Abuse and the Department of Defense’s Worldwide Survey of Health Related Behaviors to compare military and civilian populations before and after adoption of the military’s zero-tolerance policy in 1981. They concluded that, in 1995, military employees were about 16 percent less likely to report using drugs during the past year as their civilian counterparts, and that very little of this difference appears to be attributable to self-selection bias. Noting, however, that selection bias might more heavily influence younger age groups, they estimated that the deterrent effect might be as low as 4 percent. Testing in the Civilian Workforce Mehay and Pecula observed that a zero-tolerance, frequent testing protocol, similar to the military approach, probably would not be cost-effective in the civilian sector, but they suggest that a less frequent testing policy, with a more lenient second-chance sanction, might yield a 10 percent deterrent and “can be expected to reduce drug use in a cost-effective manner.” In the committee’s view, however, extrapolating in this way from the military experience to the civilian sector is questionable. Even if the prospect of being subjected to drug testing does not affect drug users’ initial decisions to seek employment with a particular firm, employees have an opportunity for exit not available to people on active duty in the military when they find out about a firm’s testing program. As a result, self-selection is likely to be a much more substantial factor in civilian employment than in the military setting, especially when employment opportunities without drug testing are plentiful. Until recently, nationally representative data that could be used to examine the association between drug use and drug testing outside the military have not been collected (National Research Council, 1994). However, the 1994 National Household Survey of Drug Abuse included a special workplace module that contained a series of questions about workplace drug testing programs. It therefore became possible to ascertain the
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us relationship between employee drug use and the characteristics of workplace drug testing. Hoffman and Lavison (1999) found that adults who use marijuana or cocaine at least weekly are more likely than other employed adults to work for companies with no testing program and less likely to work for companies with preemployment testing or a random postemployment program. For example, compared with persons who never used marijuana or who used it more than three years earlier, people who used marijuana at least weekly within the year prior to the survey were about one-third as likely to work for employers with postemployment drug testing. However, because the study is cross-sectional, it cannot shed any light on whether this association is attributable to self-selection (drug testing deters current drug users from working for firms with testing programs) or to deterrence (the threat of drug testing leads drug users to terminate or reduce their drug use). Some proponents of employment drug testing point to the fact that the percentage of employees who test positive has declined significantly (from 18 percent in 1987 to 5 percent in 1997) in tandem with a significant increase in the proportion of large employers requiring drug testing (from 21 percent in 1987 to 81 percent in 1997). It is clear, however, that there need be no causal link between these two trends. First, the decline in percentage of positive tests reflects the overall decline in prevalence of drug use in the young adult population, which began in the early 1980s and extended into the 1990s. Second, a greater proportion of drug tests are based on random selection and therefore the pool of employees being tested has been expanded to include more nonusers. The committee recommends that the Bureau of Labor Statistics monitor the measures taken by employers to discourage use of illegal drugs by their employees, including drug testing, and that the National Institute on Drug Abuse support rigorous research on the preventive effects and cost-effectiveness of workplace drug testing. SCHOOL SANCTIONS School Discipline There is very little systematic evidence regarding the application of school disciplinary sanctions to student use of illegal drugs (or alcohol or tobacco). Two recent surveys shed some light on the subject. In 1997 the Department of Education commissioned a survey of school principals in a nationally representative sample of regular public elementary, middle and secondary schools in the United States (National Center for Education Statistics, 1998). According to their reports, a substantial majority of schools purport to have a zero-tolerance policy toward student use of
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us alcohol (87 percent), tobacco (79 percent) or illegal drugs (88 percent). (Zero tolerance in this context refers to a school or district policy mandating predetermined punishments for specific offenses.) High schools were slightly less likely to have zero-tolerance policies for tobacco use (72 percent) than for alcohol (86 percent) or illegal drug use (89 percent). One-fourth of the principals (27 percent), representing about 21,000 schools nationwide, reported having taken significant disciplinary action against student use of alcohol, tobacco, or illegal drugs during 1996–1997. These actions included expulsion (18 percent), transfers to alternative schools or programs (20 percent), and suspension for periods of five days or more (62 percent). About half of high schools (45 percent) and a third of middle schools (36 percent) reported conducting occasional “drug sweeps” (locker searches or dog searches) during 1996–1997. Additional data can be gleaned from the National Study of Delinquency Prevention in Schools, a national study of schools conducted during spring 1997 and the 1997–1998 school year, which included principal reports of school sanctions (Gottfredson et al., 2000). The survey found that almost all schools have written policies about drugs, and almost all schools report that they usually expel or suspend students for possession of alcohol or illegal drugs. A substantial majority of schools report that they impose these sanctions automatically for possession of illegal drugs (77 percent) or alcohol (67 percent). The study also revealed that 46 percent of high schools conducted routine locker searches and 31 percent of high schools used dogs to sniff for drugs, guns, or bombs. No evaluative data on the effectiveness of these practices is available. Drug Testing in High Schools Drug testing programs have become well established in professional and college sports. Notwithstanding occasional highly publicized violations, it is generally agreed that drug testing in this setting, for both deterrent and declarative purposes, is both legitimate and effective.4 In contrast, the legitimacy (and value) of mandatory drug testing of 4 Drug testing for professional athletes is on strong ethical footing because an opportunity to participate in professional sports, and to reap the rewards of doing so, is a “pure” privilege, and athletes who want to reap those rewards can fairly be expected to submit to drug testing as a condition of participation. Such contractual arrangements are wholly devoid of coercive elements. These observations are generally applicable to college athletics as well, although a connection between tuition and athletic scholarships for many athletes does introduce a slightly coercive element.
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Informing America’s Policy on Illegal Drugs: What We Don’t Know Keeps Hurting Us high school athletes is much more controversial. On one hand, widespread implementation of mandatory drug testing programs for high school athletes could deter use among students who want to participate in athletics and could also help to establish a drug-free culture in the schools when combined with other norm-setting activities. On the other hand, such programs involve a significant coercive element, because testing is linked to participation in an activity that might be regarded as a core educational and developmental opportunity for many students. Although the constitutionality of mandatory drug testing for high school athletes has been affirmed by the U.S. Supreme Court (515 U.S. 646, 1995), many students and parents are strongly opposed to these programs. Although no systematic survey of drug testing has yet been conducted, the study by Gottfredson et al. (2000) reveals that approximately 9 percent of secondary schools conduct some sort of testing program, presumably focused on athletes. Newspaper and litigation reports indicate that some school districts are requiring testing as a condition for participation in all extracurricular activities. At the present time, however, there is no scientific evidence regarding the effects of these programs, either on drug use or on the learning environment. The National Institute on Drug Abuse has recently funded a three-year randomized controlled trial of drug testing in 18 schools, to be conducted by the Oregon Health Sciences University (Linn Goldberg, personal communication). Data from a pilot study conducted by these investigators suggests that testing of athletes does have a significant deterrent effect—a noteworthy and intriguing finding in light of the fact that the testing protocol being implemented in this study has been designed to eliminate any risk to the students that positive tests could be disclosed to law enforcement authorities or lead to any form of school discipline beyond suspension of athletic participation. The committee recommends that the National Institute on Drug Abuse and the Office of Educational Research and Improvement support rigorous research on the preventive effects, costs, and cost-effectiveness of drug testing in high schools, with a particular emphasis on the relationship between drug testing and other formal and informal mechanisms of social control. REFERENCES American Management Association 1999 About AMA. [Online]. Available: http://www.amanet.org/aboutama/. Andenaes, J. 1974 Punishment and Deterrence. Ann Arbor: University of Michigan Press.
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Representative terms from entire chapter: