The most proportional significant shift in General Fund spending in 2021-2023 was the increase in Human Services, which was offset by reductions in the percentages going to Public Safety/Judicial Spending, K-12 Education and various minor programs. The increase in Human Services is largely driven by the legislature’s commitment to continue Medicaid coverage at least the same level without any fee increases despite inflation in medical care, and to expand access to the system for undocumented immigrants. Mental health programs were also enhanced. When combined with Other Funds, K-12 Education reached a record total of $9.3 billion and Democratic legislative leaders resisted pressures to go further. The relative decline in Public Safety Judicial spending reflects Governor Brown and various legislators’ interest in sentencing reform and prison consolidation, as well as the temporary use of early releases and less incarceration in response to COVID. Although their proportionate share did not increase, Higher Education in Oregon benefitted strongly in the 2021-2023 final budget, partially because it could harvest diverse federal monies. According to the Higher Education Coordinating Commission , the state’s overseeing body, “In general, posts econdary education and workforce experienced promising growth in key program areas in the 2021-23 budget. Support for community college operations increased 10.5 percent from 2019-21 LAB, and state support for public university operations increased 8.1 percent. These are the funding levels the institutions requested to accommodate actual cost growth and are expected to be sufficient to mitigate tuition increases during the biennium.”The rule of law is often seen as a formal,cannabis grow tent governmental alternative to informal, social mechanisms for regulating conduct.
In this Article, I examine a more indirect manifestation of the rule of law: the indirect effect that the criminal law can have on private efforts at risk management by individuals and corporations. Formal law can encourage private risk regulation, but it can also distort it.Trained technicians in commercial laboratories routinely employ a common technology—gas chromatography/mass spectrometry —to test samples for the presence of illicit psychoactive substances as well as dangerous or benign adulterants. One of these laboratories, LabCorp, provides occupational testing services for corporate clients.2 Another, Drug Detection Laboratories , conducts GC/MS screening of samples provided by DanceSafe, EcstasyData.org, and the Multidisciplinary Association for Psychedelic Studies.3 LabCorp’s samples are obtained from corporate clients’ random or systematic urine testing of their prospective and existing employees. DDL’s samples come from anonymous Ecstasy consumers who seek information on the potential presence of adulterants in samples they have purchased illicitly. This Article explores the remarkably different normative and behavioral consequences that follow from the use of the same basic laboratory protocol to test illicit drug use 4 and for illicit drug safety.My primary interest is in testing practices conducted by private citizens rather than agents of the legal system. At first glance, one might think that safety testing and use testing have little shared relevance. I do not contend that they are mutually exclusive alternatives. Both use testing and safety testing are intended to reduce harms, and each presumes to do so indirectly, by influencing the decision to ingest a drug. But these practices exemplify two distinctly different strategies for thinking about the management of risky behaviors— prevalence reduction and harm reduction. Prevalence reduction seeks to reduce the number of people engaging in a given behavior, while harm reduction seeks to reduce the harmful consequences of engaging in that behavior.Practices and concepts most readily identified with prevalence reduction include abstinence, prevention, deterrence, and incapacitation. Practices and concepts most readily identified with harm reduction include safe-use and safe-sex educational materials, needle exchanges, and the free distribution of condoms to students. Prevalence reduction may be employed in the hope of reducing drug-related harms, but because it directly targets use, any influence on harm is indirect. Harm reduction directly targets harms; any influence on use is indirect. This Article focuses on the private use of these methodologies. These private uses occur in the shadow of the law, thus criminal law influences—and, to some extent, distorts—their consequences.
Criminal law facilitates the intrusive exercise of use testing in workplaces and schools that might otherwise have difficulty implementing it; this is illustrated by the greater prevalence of drug testing than of alcohol testing.Criminal law also hinders the effective implementation of safety testing, making it easier for sellers to distribute adulterated and often dangerous products. More subtly, criminal law frames the issue of drug use as one of criminal deviance, which encourages some solutions but obscures others. For example, the focus on drug testing overlooks the potentially more harm-reducing use of psychomotor testing.8 Thus, both practices are constrained by the criminal laws prohibiting these drugs. This is not an argument for ending drug prohibition, nor do I argue for the superiority of safety testing over use testing, or harm reduction over prevalence reduction.But this Article suggests a less moralistic, more pragmatic approach to drug policy—an approach that is less speculative than legalization because it is has been pursued for decades in the Netherlands, and increasingly in the United Kingdom, Australia, and elsewhere.Not surprisingly, positive drug test rates are dramatically higher among criminal justice arrestees. The National Institute of Justice began collecting systematic drug testing data from arrestees with its Drug Abuse Forecasting program in 1988. An improved methodology, the ADAM program, was implemented in 2000.The most recent data available are from 2000.In that year,grow lights for cannabis more than half of thirty-five sites reported that 64% or more of their male arrestees tested positive for either cocaine, opiates, marijuana, methamphetamine, or PCP.The most common drugs present were marijuana and cocaine.Any consideration of drug test results should be qualified by the serious limitations of existing testing methods. Blood testing is the most accurate method for identifying drug influences at the moment of testing, but it is intrusive, expensive, and rare.Urine testing, which is also intrusive, is far more common. But it is a poor indicator of immediate drug status because drugs cannot be detected in urine until they have been metabolized, often many hours after consumption.Urine testing is particularly sensitive to cannabis use, and can detect use dating back several months for a heavy user, but it is far less likely to detect other “hard” drugs.
Saliva and hair testing are less intrusive and are becoming more common. In fact, hair testing can detect use dating back two to three months, and can even date the use with some accuracy.Use testing is vulnerable to false positives due to contaminants , as well as false negatives due to temporary abstention , “water loading” , and even a haircut. Detailed advice on defeating a drug test is available on various web sites.For example, false positives for marijuana can be triggered by many different prescription and over-the counter medications.Another reason to be wary of the accuracy of use testing results involves sampling. “Random testing” may sound a lot like “random sampling,” but there is selection into and out of the sample, because users and others who object to testing may avoid the testing organization altogether—whether it be the military, a workplace, or a school sports program.From a deterrence perspective, use testing should be an effective way to reduce drug use. Aggregate econometric analyses and individual-level “perceptual deterrence” studies suggest four generalizations about drug offenses, drunk driving, and various income-generating crimes: the certainty of punishment has a modest but reliable causal impact on offending rates, even for offenses with very low detection probabilities; the severity of punishment has no reliable impact, either in isolation or in interaction with certainty; the celerity or speed of punishment is important, but post-arrest criminal sanctioning is probably too slow to be effective; and an arrest can trigger informal social sanctions, even in the absence of incarceration.Use testing increases the certainty of sanctioning, and even when it does not lead to arrest, the consequences of a positive test are effectively punitive, because it damages one’s reputation with family, friends, and colleagues. Nevertheless, support for a general deterrent effect of drug testing is mixed. The available studies are correlational and hence they are subject to a variety of inferential problems. It is astonishing that such an intrusive intervention is being implemented so widely in the absence of a carefully controlled experiment group, with random assignment to testing condition either at the individual, site, or organizational level.In 1981, the United States military implemented a tough “zero-tolerance” drug policy, which imposed mandatory drug testing and threatened job termination for violations. Two studies have examined the effects of the policy. Professor Jerald Bachman and his colleagues used the Monitoring the Future cohort data from young adults who graduated from high school in 1976 through 1995.They found declining rates of drug use among active duty military personnel and nonmilitary cohort members in the two years after graduation, but beginning in 1981, the rate of decline was steeper for the military group, at least for illicit drugs. This is a pattern “strongly suggestive of causal relationships.”In a separate study, economists Stephen Mehay and Rosalie Pacula compared NHSDA and Department of Defense health survey data collected before and after the military adopted the zero-tolerance policy.They estimated a 16% drop in the prevalence of past-year drug use in the military, with a lower bound estimate of 4%.Dr. W. Robert Lange and his colleagues examined the effects of a decision at Johns Hopkins hospital to shift from “for cause” employee testing in 1989 to universal pre-employment testing in 1991.In 1989, 10.8% of 593 specimens were positive— 55% of them for marijuana—and there were seven “walkouts” who refused to be tested.In 1991, 5.8% of 365 specimens tested positive—28% for marijuana—with no walkouts.The authors interpreted these results as evidence of the deterrent effect of drug testing.But Professors M.R. Levine and W.P. Rennie offer a variety of alternative explanations, including the fact that in 1991 users had advance warning of the test and could abstain, water load, or ingest legal substances that would confound the test.The most comprehensive study of the effects of school testing on student use comes from analyses of data from the Monitoring the Future survey.This analysis found no measurable association between either random or “for cause” drug testing and students’ self-reported drug use.The study is cross-sectional, rather than prospective, and is somewhat limited by the relative rarity of exposure to testing. A more focused test was provided by the “pilot test” of the Student Athlete Testing Using Random Notification project.During the 1999–2000 academic year, the authors compared two Oregon schools using mandatory drug testing with another school that did not.60 Neither students nor schools were randomly assigned to drug testing versus nontesting.The authors reported a significant treatment effect; though statistical details were not presented, the conclusion is apparently based on a difference-in-difference estimate of changes from pre- to post-test in the control versus treatment schools.But caution is warranted for several reasons. First, although there was a slight decrease in drug use at the treatment schools the effect is largely attributable to an increase in drug use at the control schools.Because assignment to condition was not random, there is little reason to believe that a similar increase would have occurred at the treatment schools absent testing. Second, most drug use risk factors, including drug use norms, belief in lower consequences of drug use, and negative attitudes toward school actually increased among the target group—athletes at the treatment school.These puzzling results may explain why the study was labeled a pilot test, and why a more ambitious and rigorous follow-up study was launched. Unfortunately, the study was terminated by the Federal Office for Human Research Protection due to human protection concerns.At present, the evidence suggests that the military’s testing program had a deterrent effect, but no such effect was found in the workplace or in schools. Still, the absence of evidence is not evidence of absence. There are very few rigorous studies; low statistical power, noisy measurement, and other factors may hide genuine effects. Alternatively, it may be that the military program is more effective as a deterrent due to differences in its implementation, its target population, its consequences for users, or the institutional setting.