“Send ‘Em To Jail That Day!” The Newest Frontier in the Drug War and the People Who Make Millions from It

This article originally appeared in the Nation Magazine. Click here to subscribe to the Nation.  This story was produced with support from the Economic Hardship Reporting Project.

The annual Drug & Alcohol Testing Industry Association (DATIA) conference, held in 2012 in San Antonio, Texas, looks like any other industry gathering. The 600 or so attendees sip their complimentary Starbucks coffee, munch on small plates of muffins and fresh fruit, and backslap old acquaintances as they file into a sprawling Marriott hotel conference hall. They will hear a keynote address by Robert DuPont, who served as drug policy director under Richard Nixon and Gerald Ford. Nothing odd about any of this until you consider that the main subject of the conference is urine.

Seventy-seven years old, DuPont adopts the air of a sprightly televangelist as he outlines what he calls “the new battle lines” in the war on drugs, one that “begins with kids.” At the climax of his speech, DuPont offers “the new paradigm” of drug treatment: a program that one controversial Hawaiian judge administers to all drug-addicted probationers he oversees. “If they test positive,” he says, his voice slowly rising into a high-pitched yell, “they go to jail that day! No discussion!… No discretion! To jail that day!”

As DuPont finishes his speech, the hundreds of drug-testing company representatives in the audience rise to give him a standing ovation.

DuPont is in an expansive mood following his speech. Since the 1980s, he has been in the business of selling drug-testing services to employers. As far as he’s concerned, drug tests should be given to “anybody who receives a benefit,” from unemployment insurance to welfare. “Test ‘em all!” he exclaims.

This may sound overzealous, but Republican lawmakers around the country are already enthusiastically embracing the idea of making clean urine a condition of receiving public benefits. Since 2011, seven states have passed laws mandating drug tests for Temporary Assistance for Needy Families (TANF) applicants and recipients, and in 2012 at least twenty-five other states considered proposals to tie welfare cash assistance, and in some cases also food stamps, to drug tests. In February 2012, Congress passed a law paving the way for states to urine-test the recipients of unemployment benefits seeking work in sectors where such screenings are required. Since then, sixteen states have considered laws tying unemployment insurance benefits to drug tests.

The thirst for urine can be traced to the military’s 1971 Operation Golden Flow, aimed at detecting druggies among Vietnam veterans. Launched in response to rumors of heroin addiction, the test disproportionately netted marijuana users, since one byproduct of marijuana, carboxy-THC, lingers in the body longer than that of harder drugs. (In contrast, the body flushes out the byproducts of harder drugs, such as cocaine and heroin, within a day.) Nevertheless, before long, all service members were required to urinate in a cup at least once every two years.

Then there was the executive order issued by Ronald Reagan in 1986, which warned that “the use of illegal drugs, on or off duty, by federal employees in certain positions…may pose a serious risk to national security.” The order mandated that all federal agencies implement drug-testing programs to “show the way towards achieving drug-free workplaces.” Two years later, Reagan went one step further, signing the Drug Free Workplace Act, which mandated urine tests for every employee working for a federal grantee and even those working for some contractors.

At first, the medical profession dismissed urine testing as “chemical McCarthyism”—and ineffective to boot, since a worker using cocaine several times a week was more likely to pass a drug test than a colleague who’d smoked a joint at a party the previous Saturday night. Meanwhile, most tests ignored alcohol, which is the drug most often blamed for workplace accidents.

“It’s like learning that somebody drank beer three days ago,” says Bill Piper, director of national affairs with the Drug Policy Alliance. “What’s that going to say about how functional they are at work today? It’s unscientific and discriminatory.”

But the Reagan administration saw drug tests as essential for cracking down on a population largely outside the reach of law enforcement: people smoking pot in the privacy of their own homes. “Because anyone using drugs stands a very good chance of being discovered, with disqualification from employment as a possible consequence, many will decide that the price of using drugs is just too high,” read a 1989 White House report.

In the decades since, drug-testing companies have marketed urine tests as a wise investment for all employers. They claim that any drug user is a less productive worker, and more likely to cause workplace accidents, show up late for work or simply quit. Such claims persist despite a 1994 review, by the National Academy of Sciences, of all the independent research published on workplace drug testing, which found little support to back up those claims.

Indeed, one study of employers in the high-tech sector found that drug testing “reduced rather than enhanced productivity.” Performance-based tests, researchers found, are far more effective at assessing a worker’s ability to perform safety-sensitive jobs than drug testing. Unlike urine tests, these tests detect drug impairment and a host of other factors (fatigue, stress, alcohol) far more likely to compromise a worker’s concentration than past marijuana use.

Nevertheless, the escalation of the drug war would prove more powerful than the evidence that undermined it, producing a powerful coalition of government and private industry players determined to convince employers of the wisdom of monitoring their workers’ bladders.

* * *

One of the entrepreneurs drawn to the burgeoning drug-testing industry was Elaine Taulé. A longtime DATIA board member, she says she got into the business because she wanted to test her own sons. When she told this to the staff of National Health Laboratories, a major drug-testing lab, in 1987, they were incredulous. “The lab just sort of looked at me and said, ‘What! Do you really think your 17-year-old is going to pee in a cup?’” But Taulé was insistent. “If I say, ‘It’s either your urine or your car keys,’ I may get his urine,” she said. She went on to found her own drug-testing business, NMS Management Services, in 1989. MOREHERE