Drug Testing and Unreasonable Search

I received an email from a friend today and sure that she would love it if I shared it with all.

Hi Nora,

I haven't written for a while. I have another thing that urks me.

The Bill of Rights tells us that we have the right to ask for a search warrant. The police officer has to show probable cause that he thinks someone may have drugs or alcohol on him to pull him over and give him a drug test or sobriety test. The police has to show good cause to go into your home and search for drugs.

Your body is more personal than your "personal effects" written in the Bill of Rights. If an employer asks for a drug test, he wants the urine specimen that is inside your body. He should have good cause to ask for it. He should assume you are under the influence if he is asking for the drug test. You have the right to say that you want a search warrant signed by a judge. If the employer has a warrant, they can collect the urine specimen that comes from inside you to see if you have drugs in your system. If there are no drugs inside you. You have the right to sue them for harassment. This is enough. It is an invasion of privacy. There are less Americans who do not do drugs than do drugs. I'd like to see the percentage of how many employment drug tests are unfavorable. It's a waste of time and money. It is a disgraceful thing for us to do. It is shameful thing to make us do it.

If they want to see if we "ever" did drugs, they can take a hair sample but then again, they would need a search warrant and they would need probable cause. If we do not appear to be under the influence during the job application process, why must we have to do this?

The Bill of Rights is already written, let's exercise our rights and use it for this, too!!

I'm sick and tired of having to do a drug test just to get a job. I'm 54, not a drug user and want our human and civil rights back!
Not to mention our dignity!

Sandra Bouchard

Determinate Sentencing's Quandary

By the time law students and criminal justice majors are hitting the books, and finding these summertime messages about 'real offense guideline sentencing,' exploring the way that the federal government's broad application of uncharged, even acquitted conduct can ratchet up a sentence, complete with stale criminal histories, tales of informants, etc and all — I'll be sleeping under the stars and kayaking in a nearby river.

I want to leave readers with something meaty in my absence. Ordered from public archives, the LEAA Library, a former prisoner volunteered to scan it, and we've made it available on our website. It's called "...WE ARE THE LIVING PROOF..." The Justice Model for Corrections and was authored by David Fogel in 1975. Dr. David Fogel was an Illinois Correctional Official, one of a successive few corrections officials to promote administrative justice models, now called 'determinate sentencing' in reality, but called 'Sentencing Guidelines' in practice.

WE ARE THE LIVING PROOF is 328 pages, and 33 years old, but crucial academic history as to how sentencing revolutionized in 1984. The LEAA library, or collection entire is likely significant because as anti-prison abolitionists of the day warned — LEAA, the Law Enforcement Assistance Administration was to police and prison officials, what the pentagon is to the military today. Yet the author, David Fogel was a self-proclaimed 'fortress prison abolitionist' -- and the plot thickened for me because I'd long had a hunch that 'progressive' ideas went real bad, and having a brother 19 years down on a guideline (wink, wink) sentence of 27 federal years, I read Fogel's work with far too much fascination. And reading it, I kept thinking about all the prisoners who've wondered who cooked up parts of this mess we are in, and legal students, and advocates might appreciate the thought and sentiment behind what has become an entirely revolutionized federal sentencing system.

In some fairness to Fogel, he warned that all of his ideas would have to be implemented, and if piecemeal adoption took place -- would only create what is easily illustrated in alarming ease -- the United States has a "carceral crisis,' of epic proportions.



One of Fogels goals was to abolish parole and have fixed sentencing -- that this system would respect the keepers and convicts. Writing of and to his critics, he wrote long into his manuscript:

Even assuming the relevancy of our claim that the rationalization of parole along lines of a punishment-deterrence-justice model could bring more safety, sanity and fairness to prison life, some have argued: "Why mess with the system?" Some critics reason that even if the present anomie in sentencing and parole appears to be unjust, most prisoners average only a two year plus stay; and the more the appearance of unfairness is exposed, the more tightening up will be legislated. This might, in their view, bring more convicts into the system and keep them longer. Therefore, modernization may contain the seed of an unintended consequence which could operate against the cause of lower numbers of prisoners with relatively shorter average stays as compared to actual sentences. Hence the rationale becomes: "leave it alone, you can't really affect the onerousness of prison life anyhow, and you may open up a Pandora's Box for conservative legislators which will produce draconian prison stays (actual) rather than merely the semblance of long sentences as we have now." This is not unattractive. It is even a bit seductive. But it is not convincing on several grounds.

Fogel goes on to explain that high levels of imprisonment would cost too much, and legislators who promoted harsh sentencing would easily be voted out of office. Yeah, this smart man -- esteemed and highly regarded in his field, could never have been more wrong, and critics more prophetic.

This old writing, in support of fixed, determinate, mandatory sentencing, called guides or otherwise should prove interesting for lots of people intent on spending time in their futures creating new federal criminal justice laws and policing policy.



When we ask for returning parole, or forms of earned, early release, we need to know that we confront more than sentencing law, we confront sentencing philosophy, too.