Since 1969, when Richard Nixon declared a war on marijuana, the national drug authorities have struggled in vain to combat the increasingly popular use of pot and other illicit substances. Forty million Americans have tried marijuana, 20 million smoke it regularly, some 5–6 million are habitual users of cocaine, and heroin addicts number about a half-million. Illegal drugs add up to a $110-billion-a-year business, with marijuana now trailing only corn as the nation's most valuable cash crop. And despite President Reagan and Attorney General Ed Meese's well-publicized campaign to beef up the nation's dope-busting forces, illicit drugs are more available today than ever before.
The authorities, however, think they've found new hope in an idea proposed by the President's Commission on Organized Crime: testing American workers by urinalysis for illicit drug use. Admitting that attempts to curtail the supply of drugs have proved futile, commission leader Judge Irving Kaufman suggests that a crackdown on demand is now in order. In a report issued in March, the commission recommended mandatory testing of all federal-government employees and of all who work for government contractors, and it urged private employers to implement testing.
The proposal immediately set off waves of outraged response, with critics blasting it as unconstitutional. The outrage is certainly welcome, but by focusing on the constitutionality of testing, the debate misses the fundamental issue: the drug prohibition itself.
If testing employees for drug use were a purely voluntary system, it wouldn't be unconstitutional. Employers have the right to require testing for drug use or anything else as a condition of employment, and if employees choose to work under such conditions, so be it.
Constitutionality aside, however, indiscriminate universal testing is still repugnant. It operates on a perverse notion of presumed guilt, leaving it to the individual to prove his innocence. The attitude of those who support the testing proposal seems to be that if you haven't done anything wrong, then you have nothing to worry about. The absurdity of that position comes out by applying the same logic elsewhere: would you permit the police to enter your living-room unannounced every now and then just to make sure that you weren't, say, beating your children?
Moreover, tests are not 100 percent accurate, which means that there will be falsely accused suspects. For example, using a procedure that is 95 percent accurate to test a population in which, say, 1 percent are "guilty" would mean that for every true accusation there would be five false accusations.
Testing is also a gross invasion of personal privacy. An individual's relation with his urine and what to do with it is an intimately private matter, and to subject the stuff to inspection by boss and police alike is an affront to personal dignity.
Yet so long as drugs are prohibited by law, authorities will be drawn to such methods of detection and enforcement, methods that are abusive of personal privacy. Already, for example, the drug police, on the lookout for "money-laundering" by drug dealers, monitor the banking activities of individuals, and banks are required by law to report large cash transactions to the authorities.
John Lawn, head of the federal Drug Enforcement Agency (DEA), fairly beat his breast when, speaking earlier this year to a gathering in California, he reported some of the feds' handiwork on this score: "These financial investigations are going on all over the United States. One California bank was fined $2.25 million for failing to report almost 7,900 separate large cash transactions amounting to $3.98 billion during the last five years," the DEA chieftain reassured his listeners. "Another bank in California was fined $4.75 million for failing to report more than 17,000 large cash deposits and transfers since 1980," Lawn recounted with rising glee—though noting that in this case the institution had itself uncovered its sins against the state and "voluntarily brought its violations to the attention of the Treasury Department." Thank goodness.
The drug police have to resort to such invasive surveillance techniques precisely because the "crimes" they are trying to detect involve no victims and therefore no plaintiffs. The various transactions that take place among participants in the drug trade, from producers to traffickers to buyers, are purely private and voluntary. If I peacefully sell a substance to someone who is willing to pay for it, whose rights have been violated? If I peacefully buy a substance that someone's willing to sell me, whose rights have been violated? If I peacefully ingest the substance, whose rights have been violated? No one's.
But in order to uncover those various transactions—the supposed crimes—the drug-enforcement authorities must somehow breach the privacy in which the transactions take place: through infiltration of the drug trade, through surveillance of individuals and their bank accounts, through entrapment of drug sellers and buyers. And now, of course, by proposing to collect and assay the urine of American workers, the authorities have latched onto what is thus far the most invasive monitoring of private individual conduct.
Debating the constitutionality of the testing issue, then, is ultimately an exercise in rearranging deck chairs. That the enforcement of the law requires such bizarre and abusive measures indicates that the drug prohibition itself is fundamentally wrong and must be ended.
The pragmatic arguments for legalizing drugs are by now familiar: No enforcement efforts short of erecting a massive police state will curtail either use or supply of easily concealable and privately consumed substances that are in popular demand. Legalizing drugs would drive organized crime out of the business. It would dramatically bring down the price of addictive drugs like heroin, relieving addicts of the need to rob to support their habits, and thus eliminating a major source of crime in American cities. It would relieve the police and the courts of burdensome and costly enforcement and adjudication responsibilities, and it would help depopulate the nation's jails and prisons. (In federal prisons alone, 37 percent of the inmates are there for drug violations.)
Pragmatism, then, suggests that we end the costly and futile prohibition of drugs; regard for justice and freedom dictates it.