Voluntary Drug Testing for Some Inmates Awaiting Trial Is Proposed

Alarmed by statistics showing a dramatic link between drug use and crime, San Diego County law enforcement authorities are quietly drafting plans to institute voluntary drug testing of some jail inmates.

Under the program, which officials hope to initially fund with a federal grant, results of the urine tests would be used by a judge in setting conditions--such as follow-up drug screening or counseling--for a suspect’s release pending trial.

Backers of the testing say it would improve the conduct of criminal defendants while they are awaiting their day in court. Citing statistics showing that drug-using suspects are more likely than non-users to miss court appearances and commit additional crimes while out on bail, officials predict that ongoing monitoring of certain defendants through urinalysis would deter such behavior.

The drug-testing plan is still in the conceptual stage, but it already has raised a chorus of protest among criminal-defense attorneys. Some critics suggest the screening would be unconstitutionally intrusive, while others question the reliability of the tests and worry that a false result could cause serious problems for a client.

Though county officials insist the test results would be known only by the bail judge and would not be used against a defendant by prosecutors, some lawyers are skeptical of that claim. They further fear that the jail environment provides ample opportunity for abuse of such a program.

Moreover, asking people to submit to a drug test merely because they wind up in jail is directly contrary to the presumption of innocence to which criminal suspects are entitled, some attorneys argue.

“Drugs are a legitimate and serious societal concern, but I find this idea very troubling,” said Frank Nageotte, president of the Criminal Defense Bar Assn. of San Diego County. “I don’t want to suggest that the people running it would not act in good faith, but the whole atmosphere of the jail is coercive. Someone locked up isn’t really in a position to make ‘voluntary’ decisions. I fear that the message will be, ‘You better take this test or else.’ ”

Supported by Dist. Atty. Edwin Miller, the drug-testing plan grew out of the Justice Services Administration Council, a group of top officials from assorted county agencies that meets to discuss trends in the local law enforcement arena.

Members of the group say they have become convinced in recent months that something must be done to address the strong correlation between drug use and crime. That link has been established through voluntary, anonymous drug testing conducted quarterly in the County Jail downtown by the San Diego Assn. of Governments.

The Sandag tests show that in July, 83% of recently booked inmates arrested for felonies tested positive for some drug. That figure was up from 66% in June, 1987. (The Sandag results are considered highly reliable because the vast majority of inmates--who are rewarded with candy or cigarettes if they provide a urine sample--agree to be tested.)

“This data clearly shows that a very high percentage of those in jail have one or more drugs in their system at the time they are taken into custody,” said Chief Probation Officer Cecil Steppe, a member of the JSAC and its drug-testing subcommittee. “Given that, it seems to me we ought to have some sort of response to drug use as one of the motivating factors in criminal behavior.”

Those arrested on suspicion of committing property crimes such as burglary, larceny and auto theft have a particularly dramatic drug use rate--75% or more, according to Sandag--so county officials have decided to zero in on that population with the testing program.

Under the proposal the JSAC will consider Thursday, all suspects booked on property crimes in the central jail downtown would be asked to submit to a drug test. Officials assume that most inmates would agree to be screened when assured that the results would not be used against them as evidence in their case.

“Also, a defendant generally perceives that if he cooperates, he will be treated better by the system,” said Chuck Pennell, a county analyst working on the drug-testing proposal. “A guy with a long record will agree to anything to get back out on the street.”

The test would either be conducted with equipment at the jail or by a laboratory under contract with the county. In either case, the results would be available within hours.

Information to the Judge

If no evidence of drugs were found, arraignment would proceed as usual. But if a suspect tested positive, officials would provide that information to the judge to use in evaluating his suitability for release. Depending on the person’s criminal record and other factors, the judge might then free the suspect on the condition that he submit to regular testing and undergo drug counseling while awaiting trial.

“Hopefully, by requiring them to stay clean--and testing them to make sure they do--there will be a positive change in behavior during the pretrial period,” Pennell said. “We hope to reduce their drug use, reduce their criminal activity and make it more likely they’ll show up for court appearances.”

Pennell and other proponents of drug testing in the jails say it would benefit both the public and those hooked on narcotics. Theoretically, criminals bedeviled by addiction would get the nudge they need to try to stay clean; the community, meanwhile, would enjoy a drop in crime as offenders lose the urge to steal to support a habit.

To launch the drug-testing program, county officials hope to obtain a grant from the Bureau of Justice Assistance, the funding arm of the U.S. Department of Justice. The federal government already has provided money for inmate drug-screening experiments at six sites around the country: in Portland, Ore; Tucson and Phoenix, Ariz.; Milwaukee; New Castle County, Del.; and Prince Georges County, Md. Federal officials are now soliciting applications from other areas interested in the concept.

Most of the programs established thus far took their lead from the pioneer in jailhouse drug testing, the Pretrial Services Agency in Washington, which was launched in 1984 with seed money from the National Institute of Justice.

Using a sophisticated, $75,000 machine set up right in the cell block, authorities test virtually all suspects arrested on criminal charges--between 25,000 and 30,000 people annually. Screening of urine for five drugs--cocaine, PCP, opiates, methadone and amphetamines--begins at 7 a.m. each day, and results are delivered to the courtroom by the time arraignments begin at 11:30 a.m.

If a defendant tests positive for drugs, the judge typically will attach conditions to his release pending trial. Those who fail a test or do not show up for the scheduled screening are subject to sanctions, which escalate if drug use continues, said John A. Carver, director of Pretrial Services. In some cases, defendants who commit such infractions are found in contempt of court and jailed.

“If the program is to have its intended deterrent effect, defendants must know that violations will be detected and punishment will follow,” Carver wrote in a report to the National Institute of Justice.

While the Washington program is officially described as voluntary, even its boosters concede that that description is misleading.

“Initially it’s voluntary, and we do have defendants who refuse to provide a sample on first request,” Carver said. “But once they end up in court, the judge usually requires a test and makes weekly follow-ups a condition of pretrial release.”

A consultant’s study published in June, 1987, provided what Carver and others say is evidence that their program is working.

Among the key impacts is a steady rise in the percentage of inmates released from jail pending trial. Carver said this apparently has occurred because judges are more willing to let high-risk defendants go knowing that someone will keep tabs on them through the drug-testing program. That trend has helped make a dent in Washington’s jail overcrowding problem.

Fewer Rearrests

More important, researchers found that those defendants who followed through with the so-called “urine surveillance” program were half as likely to be rearrested for new crimes as those who failed to comply with the drug-testing orders.

“What that tells us is that . . . for a certain percentage, this supervision and intervention succeeded in preventing their rearrest,” Carver said.

Another benefit of the program is that statistics gathered through the screening serve as an effective barometer of trends in drug use. After testing revealed the extent of PCP and cocaine use in Washington, government officials redirected the city’s treatment resources accordingly and increased funding for drug education.

Officials in Washington were so pleased with the program’s results that they provided local funding to continue the testing once federal grant money ran out.

Despite the glowing reviews the Washington experiment has received and the string of programs it has inspired, a legal challenge threatens to kill the project, or at least force drastic modifications.

The lawsuit was filed by a Washington man who was jailed after he violated court orders to submit to drug tests and treatment as a condition of his pretrial release. A supportive brief was subsequently filed by the public defender’s office in Washington.

Remanded for New Hearings

Initially, a district judge dismissed the case, ruling that plaintiff Tyrone G. Berry’s complaints did not reach “constitutional dimensions” and that the drug tests were reasonable. But a federal appeals court panel later concluded that “mandatory urinalysis clearly implicates rights secured under the Fourth Amendment,” and it remanded the case to the lower court for further hearings.

“Our position is based on a very straightforward Fourth Amendment analysis showing that universal drug testing is much, much too intrusive to be allowed without individualized suspicion” that a person is on drugs, said David Reiser, a public defender who argued the case before the federal appeals court.

“The issue is whether the government can test people who they have no reason to think have ever used drugs in their entire lives,” Reiser said. “Can they make these people go through this humiliating experience with nothing more to go on?”

In addition, there are some aggravating factors cited by those challenging the program, among them the way in which the testing is conducted. In Washington, unlike other jurisdictions, inmates are simply handed a cup and asked to urinate in front of as many as 40 other people, Reiser said.

“Given the reality of homosexual rape in prisons, it is understandable that younger prisoners or people arrested for the first time can be very, very frightened and reluctant to expose themselves in that way,” Reiser said.

Responding to the Fourth Amendment challenge, Carver argues that in the criminal justice context, “you can in fact make a very strong case for why (universal) drug testing is needed: first, to identify drug users and secondly to reduce the risks they pose while awaiting trial.”

Expect Less Privacy

He added that unlike a group of workers subjected to random drug testing by their employer, arrestees “already have a reduced expectation of privacy by virtue of the fact they are locked up.”

Both sides in that legal battle do agree on one thing: The lower court probably won’t rule before the U. S. Supreme Court decides a pending case that involves drug-testing issues and that is likely to affect the Washington challenge.

Elsewhere in the country, jailhouse drug testing apparently has not met with any formal opposition--in part because architects of those programs have trodden carefully.

In Portland, program director Cary Harkaway said he was “very mindful of the litigation” in designing the drug-testing project launched there in January. Specifically, Harkaway said the program is strictly voluntary and that testing is conducted in much more private circumstances than those used in Washington.

“We also sought input from the ACLU and the private defense bar so that they would be involved from the start,” Harkaway said.

It’s too early for a reading on how effective the $330,000-a-year testing program has been in Oregon: “The jury is still out, and if there is not a beneficial effect, then I would recommend discontinuing the program because of the expense involved,” Harkaway said.

Aware of Parameters

San Diego officials say they, too, will endeavor to establish a program that does not violate a defendant’s constitutional rights and therefore does not invite a legal challenge.

“There is nothing this committee will do or recommend that will not take into full account civil rights--especially the right to privacy--and state laws,” Chief Deputy Dist. Atty. Brian Michaels said. “We’re very aware of the parameters of the Fourth Amendment and are looking for a constitutionally permissible way to do this.”

Despite such assurances, defense attorneys are leery of the proposal and already have sent letters of protest to officials. Echoing arguments made by civil liberties scholars nationwide, some local lawyers say that widespread testing of defendants, even if it is voluntary, infringes on the constitutional rights of suspects who have not been found guilty of a crime.

“When a judge sets conditions of release based on drug test results, it assumes a person is guilty of some crime, and that, in my opinion, abolishes the whole presumption of innocence,” said Lou Katz, a veteran San Diego lawyer who has written the presiding judges of San Diego’s Municipal and Superior courts complaining about the proposal.

Katz said he can “only see these test results being used as a punitive measure” against a person.

John Murphy, president of the local American Civil Liberties Union affiliate, agreed and disputed the pledge that the test would be truly voluntary.

‘Being Used Against Them’

“How can it be voluntary when you’re in jail and your livelihood and liberty are dependent on the same people asking you to provide a urine sample?” Murphy said. “Even if they say this is confidential, I can’t believe the results would not come back to haunt them.”

Others scoffed at the claim that the drug test results would not be used against a given defendant: “It’s being used against them from the start in the sense that it becomes the basis for setting conditions for their release,” said Nageotte, the Criminal Defense Bar Assn. president.

Charles Sevilla, who heads the Criminal Defense Lawyers Club of San Diego, raises another question. He notes that being found under the influence of a narcotic is a violation of the state health and safety code and is punishable by a mandatory 90-day jail sentence.

If they obtain a positive result on a given defendant--and thus have evidence that the suspect has violated the health and safety code section--”are sworn law enforcement officers in the jail facility to be expected to simply ignore this” information? Sevilla asked in a letter to a member of the JSAC drug-testing committee.

To do so, he suggested, could create ethical problems for the officers. Sevilla also predicted that the proposal would “bottle up” the already congested jails and violate defendants’ rights to a speedy arraignment. And he said the county could become the target of numerous lawsuits if a drug test produced a false result.

Aside from the legal defects critics perceive in the program, some wondered whether the funds needed for such an endeavor might not be better spent on other measures that address the root of our culture’s drug problem.

Not a Panacea

“The real question is how do we keep people from using drugs, how do we address that need and the reasons people begin using in the first place,” said attorney Alex Landon. “I don’t think the hammer over their head or a threat of drug testing is the answer.”

Even supporters of the testing concept concede that this program alone is not a panacea. But they are optimistic that it can not only induce some users to kick the habit but also reduce crime.

“Drug testing by itself is only one strategy that we can bring to bear against this problem,” said Melinda Newman, the county’s drug program administrator. “If you don’t have counseling, job opportunities and ways to help users get clean and become productive persons, then we won’t get anywhere in fighting crime or drug abuse. But this is one small step.”