Federal drug testing and constitutional rights

THE current debate over the proposal of the President's Commission on Organized Crime to require drug testing of all federal employees has so far failed to identify what are perhaps the most troubling aspects of the proposal. An exposition of those problems as contained here, I think, will convince the reader that mandatory drug testing is a bad idea. The commission's proposal is not designed to prevent drug abuse because of its effects on job performance. For example, the proposal is not limited to periodically testing air traffic controllers whose abuse of drugs on the job could endanger the lives of others. Nor is it designed to protect national security by testing persons with access to classified materials. Rather, the commission's proposal is intended to serve as a general device to suppress the demand for drugs by periodically testing all federal employees and punishing those found to have illegally used drugs. Persons discovered to have used drugs illegally, either on the job or off, would be discharged. (Although the administration has occasionally denied that the sanction of discharge would be imposed, a recently reported Justice Department proposal recommends discharge as the appropriate response for persons testing positive.) In essence, then, the commission's proposal is intended to serve as a general law enforcement mechanism: If one is caught having violated the federal criminal drug abuse laws, one will be punished by being discharged.

This characterization of the commission's proposal illuminates several constitutional problems. One constitutional problem with the proposal lies in its failure to adequately safeguard the constitutional due-process rights of the employees tested under the program. Discharging a person to punish a violation of the criminal drug abuse laws is equivalent in many respects to the criminal punishments of fine and imprisonment. Certainly, loss of one's job is no less a punishment than a fine. But more important, discharge would stigmatize the offender: Under the commission's proposal, discharge would label the offender an unemployable drug abuser in much the same way that imprisonment labels a person an unemployable ex-convict.

Because the punishment of discharge is tantamount in this context to a criminal punishment, it must be attended by the same constitutional protections that attend all criminal prosecutions. The Fifth and Sixth Amendments to the Constitution guarantee that before a punishment for crime may be imposed, certain rights must be accorded the accused. Among these rights are the right to trial before an impartial decisionmaker, the right to be represented by counsel, the right to present evidence on one's own behalf, and the right to have one's guilt proved ``beyond a reasonable doubt.'' But a drug testing program would not safeguard these constitutional rights.

One can be certain that a federal drug testing program that punishes drug law violations by discharging the employee will not adequately protect the accused's constitutional rights. The efficacy in terms of criminal law enforcement of a drug testing program lies in the fact that violations can be easily established and punishments quickly meted out. Were proper heed paid to the constitutional rights discussed above, the drug testing program would quickly lose its efficiency: Instead of discharging the offender, the government might as well bring a traditional criminal prosecution and impose the traditional sanctions of fine and imprisonment. Thus, it seems that any attempt to apply a federal drug testing program that punishes offenses by discharging the employee will run afoul of the Fifth and Sixth Amendments to the Constitution.

A second constitutional problem with the commission's proposal lies in the fact that it embodies a new philosophy of law enforcement, and it is this aspect of the proposal that is most troubling. This new law enforcement philosophy revolves around a rejection of the notion of ``probable cause'' to investigate suspected criminal activities. The investigation and punishment of illegal drug use under the commission proposal is premised upon the investigation of all employees, without regard to whether the government has any reason to suspect illegal behavior.

The notion of probable cause is the bulwark of our Fourth Amendment rights. This notion distinguishes our free society from the police states of the Soviet Union and South Africa. Yet this principle of probable cause is casually cast aside by the commission and replaced with a new philosophy of criminal investigation without cause. Not only would this procedure contravene our Fourth Amendment rights, it would be a very dangerous precedent in two respects.

First, there is no logical reason that the government's use of this new sanction should be limited to enforcing the drug laws. If controlling the demand for drugs is a sufficient justification for periodic drug testing without probable cause, why wouldn't controlling crime in general be a sufficient justification for periodic lie detector tests of all federal employees?

Second, there is no logical reason why periodic drug testing should be limited to federal employees. If controlling the demand for illegal drugs is a sufficient justification for requiring periodic testing of federal employees, why isn't it also a sufficient justification for periodic testing of all welfare recipients? Recipients of federal scholarship money? Persons entering federal property?

The drug abuse problem in the US long ago reached significant proportions. But before we so radically alter our relationship with our government, we must carefully consider all of its implications. As citizens, we must be vigilant in guarding our most cherished liberties.

Robert Meyer is a lawyer completing a clerkship on the US Court of Appeals for the District of Columbia.

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