States vary in the exact make up of programs designed to combat drug use. One program that was introduced in the late 1980s included pretrial drug testing. Inmates are required to submit to testing on various schedules depending on the facilities protocols.
However, should a defendant be forced to submit to drug testing before the trial has even taken place? Pretrial drug testing creates faulty assumptions and borders on infringement of constitutional rights.
Unless a defendant is being charged with a drug related crime, in which drug use by the defendant has been purported to take place, the defendant should not be required to submit to mandatory drug testing until after a trial has taken place.
Apparently the faculty at Prince George’s County Correctional Center believed that defendants should be required to submit to mandatory drug testing. In an experimental program that lasted for one year, the urine from any person incarcerated for at least one overnight at the Correctional Center was required to submit to drug testing.
The results were included in the judge’s decision of release or imprisonment until a trial occurs. (Harriston, 1988) Another use for this testing was to determine the amount of bond that defendants were required to post before being released from jail.
According to Alex Williams, state’s attorney at the time, defendants who had drug charges but tested negative were potentially significant dealers, and the prosecutor requested higher bonds. This resulted in labeling the defendant before a trial had taken place.
Another problem is that a negative testing would result in a higher bond being placed, as the defendant was then suspected of dealing drugs rather than taking them.
Pretrial drug testing can technically be challenged as it can be in violation of at least six constitutional rights. Requiring a defendant to submit to drug testing before a trial can border on infringement of constitutional rights.
The Fourth Amendment guards against unreasonable search and seizures. Drug testing often can involve procedures that are considered invasive, such as drawing blood. Defendants also have the constitutional right not to incriminate themselves. Pretrial drug testing may be offered as voluntary, but the pros are falsely proselytized while the cons are ignored, or unknown by most defendants.
For example, if a defendant is offered pretrial drug testing in order for bond to be waived, and the defendant has no way of paying the bond, then the likelihood is that the defendant will opt for the testing.
However, if the results are positive, then this is violating the defendant’s right to not incriminate oneself. Drug testing can also lead to other constitutional violations such as the right to privacy, the right to due process, and the right to equal protection.
Most challenges to pretrial drug testing have failed. (Del Carmen, 1999) The rate of recidivism is not likely to change based on pretrial drug testing alone. Although the rate may change slightly due to defendants being unable to post higher bonds, the defendant is just as likely to commit the same crime after release from long-term incarceration. This would change the rates only slightly. (Wolf, 1994)
Pretrial drug testing should be limited to cases that are minor and that are more likely to involve mandatory drug treatment, rather than incarceration. Pretrial drug testing is apt to be more effective in cases that focus on rehabilitation vs. cases that focus on incarceration.