Category Archives: Academic Essays

public policy, folk music, urban legends, government and political leaders and conundrums, privacy, and Geek theatrics and oh, Japanese history, if i wrote and kept or found it, it’s in here

Review and Commentary of The Skillet Lickers: A Study of A Hillbilly String Band & Its Repertoire By Norman Cohen

Review and Commentary of The Skillet Lickers: A Study of A Hillbilly String Band & Its Repertoire By Norman Cohen

By Dave Olson

Prior to the time of this article’s publication, “Hillbilly Music” was not considered by many serious folklorists to be a credible avenue of research as it appeared as though it was commercialization and bastardization of traditional folk tunes. The tunes, many thought, had not been learned through word of mouth but rather written expressly for or copied, reworked and preformed for the sole intent of royalties. Cohen explains in his article that this was not always the case as many bands were merely out to share their bit and have a good time doing it. He also goes on to show the comparisons and evolutionary transitions and bridges that developed combining aspects of traditional hillbilly folk music with other styles including Tin Pan Alley, blues and jazz.

Cohen explains, “The hillbilly string band grew out of traditional dance music, which was

© Dave Olson Originally written as Dave Elliott at University of Utah for “Ballads and Folksongs” 1990

“The Skillet Lickers: A Study of A Hillbilly String Band & Its Repertoire,” Norman Cohen Journal of American Folklore, 1965 Vol. 78, No. 309 (pgs. 230-244)

played Saturday nights in many communities in the rural south.”(229) He continues with, “This study will show how deeply rooted the genre is in traditional folk music, and how, as it became aware of itself as a commercial industry it began borrowing from other styles of American music.”(229)

No attitude is completely correct as deliberate feigning of credibility and the use “folk music” as a term has been, and always will be maligned. To demonstrate the validity of some as folk performers, Cohen utilizes a band known primarily as the Skillet Lickers.

The Skillet Lickers was a nucleus from which several other groups grew. At least a half dozen recording and performing bands featured Gid Tanner, Riley Puckett or Clayton McMichen, the three main members.

Cohen, by biographing individual musicians, shows that members were legitimate, not products of media and record companies. Cohen also shows the distinctive styles, directions and contributions of the three members. They were all self-taught musicians or learned from a neighbor, friend or relative. The three of them, however were from different generations and different enough backgrounds that there was quite remarkable diversity which both contributed to their success and set them up for pursuing there own projects. They played tunes learned from here and there, as fiddler Clayton McMichen answered when he was asked where he learned “JOHN HENRY”, “That’s born in you, you heard it all your life; your mother sung that rocking you in the cradle.” (233)

All three of The Skillet Lickers were more interested in working, living and playing their tunes than being musicians. It wasn’t until a talent scout from Columbia Phonograph offered Tanner an unsolicited contract in 1924 that their professional careers began. Cohen states,

© Dave Olson

2

“The recording career began in March 1924 . . . and lasted through the end of the thirties with unabated popularity. This long and fruitful career provides excellent material for a case study of a Hillbilly band epitomizing the development of hillbilly music as a whole.”(230)

However, even with their successes, Tanner continued to work as a chicken farmer and McMichen as a welder. They all stayed active in music through radio, festivals and recording but certainly attempt or plan to exist on it. Puckett, being blind, depended more on music for livelihood. After The Skillet Lickers disbanded for good on account of artistic differences discussed later, he continued recording and touring more in the way of a professional folksinger – balladeer – minstrel. He also tended to branch out and experiment and incorporate other musical styles more than the others.

In surveying their respective discographies either as the Skillet Lickers, solo artists or in one of the myriads of ensuing bands, Cohen attempts to divide the songs into “traditional1” or “popular2”. He then goes on to determine whether a traditional song was learned from another prior recording or learned orally, or if a popular song had been learned orally. Or if a song written as a commercial song has since entered oral tradition. Or if a popular song was based on a traditional song then perhaps it was rerecorded as the traditional song. There are certainly variables and intricacies that could seem like overkill but important in tracking the folk evolution. Cohen goes into extensive detail determining origins of songs by

1 Folk songs of unknown or ambiguous origin, learned and passed on through oral transmission.

2 With some degree of imprecision, the term, “popular” refers to the music written by professional songwriters, aimed primarily at a Northern urban audience and disseminated by mass media such as sheet music and phonograph records. (231)

© Dave Olson

3

comparing lyrics, titles and tunes for several of the recorded songs, however, as extensive as it is, nothing is absolute and you never know what anyone was thinking or doing inadvertently or deliberately.

In several instances, The Skillet Lickers version was the first recorded or some songs they recorded more than once showed derivation in lyrics between one another. Another problem in determining origins and discographies in general is the extensive of pseudonyms used to breach exclusive recording contracts. Regardless of categories, justifications and determinations, a varied, curious and far too extensive repertoire emerges.

As the careers progressed, there is a definite decrease in the percentage of traditional songs recorded. This was probably due to the increasing outside influence experienced by the players who started to borrow bits of this and pieces of that to make a distinctly different form. This could be called pandering; selling out or lack of integrity but it is a natural folk evolution as the most traditional of songs change from region to region, culture to culture. Indeed, new verses emerge, choruses and names change, and styles evolve. Previously, regions had been far more segregated and so with this continued emergence of media, it should be expected that styles would merge and split for no particular reason. The problems tainted the “folk” aspect would arise when commercialism would be in the forefront, before personal integrity, in the songwriting. There is no way to objectively judge this and never will be, so the objective factor remains the traditional basis but “new” shouldn’t be immediately dismissed as less than credible. Many songs were reworked or written in the folk fashion for consumption by the commercial audience by people who thought it was neat, clever or trendy while other new songs were simply written by folks who didn’t happen to know any

© Dave Olson

4

other medium or manner in which to express their feelings or musicality. Cohen explains, “ . . . hillbilly music repaid its debt to folk music by creating new songs

and styles that have entered the folk tradition.”(229) Undoubtedly, some classic, pure, traditional folk songs would have been recorded far earlier by someone claiming authorship had the technology, idea, desire, market and opportunity existed prior.

One new form that seemed to bridge forms was the “blues ballad”, a pre-blues form with considerable negro influence that began emerging quick enough that no one knew where it was coming but hopped on the bandwagon which was easy on account of there being few guidelines and fewer guidelines and rules. Puckett had always shown considerable negro influence and became a major blues innovator primarily with his guitar and voice style which didn’t fit the traditional hillbilly fashion, he was one of the first to using open tunings, slide techniques, different strumming styles, flat picks and modern inflections. His style is often referred to as “pre-Carter family” and his style is of obviously universal impact. He also began playing a mandolin that had become popular by this time. Cohen says, “Puckett’s development was more typical of hillbilly music in general, moving closer and closer to the mainstream of northern urban popular music.”(240)

McMichen tended to resist the traditional hillbilly mold, thinking a rural audience would prefer to hear popular songs played on strings rather than horns. He met this with minimal success as a niche really didn’t exist because at that point, with music becoming so varied and accessible, people wanted to hear either country or pop and there were better bands playing each better than he was. Cohen, “McMichen, like many other country musicians of his day, did not distinguish between “country music” and “pop music” or jazz but rather

© Dave Olson

5

between “old fashioned music” and “modern music.” (240) Eventually he obtained some success with some non-traditional bands playing a sort of country jazz.

The three original Lickers also recorded a bundle of rural drama records, a sort of minstrel style story telling with bits and pieces of songs.

Cohen ends his article by stating, “The careers of the three Georgia musicians considered began when the hillbilly industry was in its infancy, . . . Their careers exemplify in part the development of hillbilly music from field recordings of folk music to a highly commercialized industry similar in many ways to that of “pop” music. Hillbilly music deserves attention for no other reason than that it is an exciting part of today’s music. But it is of particular interest to folklorists because it provides a certain conclusive refutation of the theory that folk cultures live in isolation from the surrounding more industrialized society. More accurately, the rural folk music exists in a symbiotic relationship with urban popular music, and frequently the agency for communication between the two is hillbilly music.” (242- 243)

Cohen, in writing this article, was on the edge of a new vital branch of folklore research, a field old enough to make research challenging but new enough and in such a medium that one would have to tread delicately so as to not mess up the fuzzy lines between “folk” and “not folk” anymore than they already were and are, thus maintaining scholarly, productive and meaningful results and curiosities from this form of music and the ensuing, obvious evolutions and repercussions of it.

© Dave Olson

6


Essay: Damn the Dam – Freeing Glen Canyon and the Colorado River

Damn the Dam

By Dave Olson, 1988

Once upon a time, there was a river, a river and a canyon. Everyone who saw this river in this canyon really liked it. Some lived for it, some died for it, many fought for it, no one hated it.

Or admitted they did. All in all though, everyone agreed about its spectacularity. “Every one of these almost innumerable gorges is a world of beauty in itself…. Yet all these canyons unite to form one Grand Canyon, the most sublime spectacle on earth.” This is what John Wesley Powell said about the Colorado River and the canyons it gave life to. The canyons Friar Francisco Garces described as “…the most profound canyons which ever onward continue.” Powell and Garces knew the Colorado a long time ago; they explored area, an area that is now very different and yet changing even now.

Up until a few years back, people took care of the river, and it took care of them. A relationship that worked well until someone decided that the river could be better used running air conditioners and so they built a dam. No one noticed much then; it was back when few knew much about the wonders this area held. Anyway, there was more than enough of this hostile, rugged area to go around. Dams were built everywhere, lots of them. It was an easy fix for the energy junkies.

“Man has flung down a great barrier in the path of the turbulent Colorado,” proclaimed the U.S. Bureau of Reclamation during the 1960’s. “It has tamed the wild river-made it a servant to man’s will.” The bureau was boasting of Glen Canyon Dam, a 710- foot high monument to technological prowess, but it could have been talking about any dam in the country (Davis 26). Now, the cliffs, the canyons, the plants and birds and rocks and things, and the river is gone.

The Colorado is no longer there as it was. Such dams back up the Colorado that still flows relatively freely and make the canyon a sluiceway between dry hills (MacDougall 54).

So why do they do it? Why do they try? Electricity and water mostly. People generally need them. A lot of them. Too much? Any alternatives? Sure.

The flood gates should be opened, the river unleashed and the damage repaired. Let Nature reign again. Yee hah and Hieghty ho.

THE RIVER IN QUESTION

Today the Colorado has been rightly compared to hundreds of miles of plumbing system (Sunset 104).

Peer into a gauge-filled control room of one of its big dams and you’ll understand the B.L.M. official who stated, “The River’s flow can be manipulated in the same fashion as the garden hose on the tap outside your home, and is” (Fradkin 81).

The Colorado has an importance out of proportion to its absolute flow (Stenger 53). Indeed few civilizations have asked so much from a body of water. And the question for the West is: Can the Colorado continue to meet these demands (Sunset 103).

A big river, but not that big, not big enough for all it is asked to do. In the early development of the country, it didn’t play the part that rivers usually play. No one found riches on its banks, it wasn’t a trade route, it didn’t even go anywhere.

Lt. Joseph Ives said upon exploring the area in 1857, “Ours has been the first and doubtless will be the last party of whites to visit this profitless locality. It seems that the Colorado along the greater part of its lonely and majestic way shall be forever unvisited and undisturbed” (Sunset 95). Words very much lacking in accurate foresight but probably quite realistic at the time.

When San Diego flushes its toilets or Albuquerque turns up its air-conditioners the Colorado is involved. In fact it’s involved in pretty much everything that happens in the southwestern United States. It waters the crops and lawns, lights the lights, quenches the thirsts, gives places to play and everything else in between.

The Colorado River is formed at the junction of what were the Grand and the Green. The Green River is larger than the Grand, but the Grand is now the Colorado. Including this river, the whole length of the stream is about 2,000 miles (Porter 18).

The series of mountain streams, which begin primarily in Wyoming and Colorado, is transformed into the giant extension cord which is the heart of the Canyonlands.

There was a time when, in my search for essences, I concluded that the canyonland desert had no heart. I was wrong. The canyonlands did have a heart, a living heart, and that heart was Glen Canyon and the wild Colorado (Abbey 64).

The Rio Colorado-the Red River–a river ten times as silty as the Nile, and seven times that of the muddy Mississippi. Too thick to drink, too thin to plow was the old adage used with the settlers.

As it curdles its way down the two-mile elevation drop (a definite advantage in sculpting) it shapes the land into knotted, twisted, fabled canyons that are the exquisite and unique trademarks of the basin area.

Then it stops.

First with Lake Powell.

Lake Powell, formed by the Glen Canyon Dam, is not a lake. It is a reservoir, with a constantly fluctuating water level–more like a bathtub that is never drained, than a true lake. As at Hoover (or Boulder) Dam, the sole purpose of this impounded water is to drive the turbines that generate electricity at the base of the dam (Abbey 65).

Then to the Grand Canyon. Of the Grand Canyon, what can one say? This is the Colorado’s masterwork, and most attempts at description, no matter how eloquent, end up sounding futile… (Sunset 100).

As if the drowning of Glen Canyon wasn’t enough, the river backs up again at Grand Wash Cliffs to create the ditch called Lake Mead. Hoover Dam is to dams what the Grand is to canyons. Man’s monolith masterpiece compared with nature’s. Some people like dams.

They are big, they can make your head spin, they’re easy to look at from the window of your Winnebago and there is pretty brochures to go along with them. Kind of like a cemetery.

I take a dim view of dams; I find it hard to learn to love cement; I am poorly impressed by concrete aggregates and statistics in cubic tons (Abbey 64).

Along the river there exists nine dams, and another fourteen on its tributaries. That’s a lot of water and electricity. Some people want more.

More than 250 miles of white water flowing through a mile deep chasm will always be attractive to those in the business of impounding large bodies of freshwater and producing electrical energy (Carothers 75).

Three choices exist: more dams, leave it be or open the flood gates and resurrect the river.

Whatever the fare of the new dams, those that already exist will keep both engineers and environmentalists busy for the foreseeable future. The question now is not how to tame the rivers but how to keep them wild (Davis 33).

QUESTIONS BUT NO ANSWERS

Having thus seen Glen Canyon both before and after what we may fairly call its damnation, I feel that I am personally in a position to evaluate the transformation of the region caused by construction of the dam. I have had the unique opportunity to observe firsthand some of the differences between the environment of a free river and a power-plant reservoir (Abbey 64).

There are changes, big changes. A transformation happened and created a new environment.

By the turn of the century, the Bureau of Reclamation estimates that all of the available Colorado River will be in use. Certain unpredictable events–a renewed demand for oil shale, a large-scale assignment of water rights Indian Tribes would hasten that day. So might a prolonged drought…(Berkman 192).

The dams along the Colorado and tributaries provide a large portion of the power and water for about 30 million people. A growing population and yet a shrinking river. The population grows and no alternatives are looked at and conservation is minimal.

There are a lot of facts and figures, statistics and studies.

They all say that much of the area is filled with a lot of cubic acre feet of water which generates so many megawatts of power at peaking hours which are sold to utilities and public works, for rates contingent partially on the hour in relationship to the peaking hours and a certain amount of cubic feet per second of water running through how many turbines, while fluctuating the many trillion gallon lake. The reports and the situation is confusing. The numbers don’t matter though as much as the alternatives that should be investigated and evaluated with a clear, unbiased mind.

The studies also say that although a multitude of species of fish and plants and birds and animals have become extinct in this area, it doesn’t matter because they dump fish in now. Fish that are regularly ground up in turbines. They say they are working on it. The studies say that it’s not hurting the downriver much. Maybe it doesn’t matter that the beaches are washing away. Now, since dams have no environmental impact, Congress is constantly barraged with proposals for more. More dams and more turbines.

(Proposals) will be postponed until the water and energy demands of the Southwest are considered to outweigh the preservationist’s arguments for maintaining the Grand Canyon Wilderness as it now exists (Carothers 76). Sources on Capital Hill say that the proposal has no widespread support at present, but “that could change if this country ever faces another Arab oil crunch” (MacDougall 54).

Lake Mead is old, the area thrashed, all but gone. Gone but not forgotten. Put an epitaph and leave it alone. Most others are new. Kill them before they grow. Lake Foul, the National Recreation Slum, lies in between. It rapes the most pristine of all locales and thus is a particular bone of contention.

The dirty, warm river fills the reservoir and passes through the dam clear and cold. Hmmm . . . Wonder where that silt went. Give it a hundred years and wallow in it. The beaches down river, the ones replenished by the silt aren’t really there now. There is a long list of plants, fish, animals and the like which aren’t there anymore. They aren’t coming back. The amount of water is regulated by the amount of microwaves running in Beverly Hills and so the lake and river level raises and lowers in coordination with the need. This accounts for not only the fascinating “bath tub formation” but it destroys pretty much every shred of flora and fauna. That flora and fauna that won’t be coming back. Besides whitewashing the canyon walls, the dam also created a lovely layer of algae in the chilly down river. Besides the birds, plants and wildlife, gone too

are the waterfalls, the beaches, the trees, the canyons, the warm, flowing river. All under the lake. There’s statistics about all this. Terms too, technical ones and all. Lots of reports too. They don’t matter. Things are dead.

But the recreation, it provides is so fun. Millions come every year to dig the scenery, spend some time outdoors, breathe some fresh air, get liquored up and piss in the lake, give del e. webb and the rest of the nature capitalist their filthy lucre, rage in circles in their turbo-mega charged speed demon boats to enjoy nature, bar-b-que their skin, take some poloroids and throw pennies of the dam (don’t get caught though, big, big fine-jail sentence too)(should been a fine for dumping 40000000 quiliontons of cement and steel between the canyon walls).

Recreational benefits, while substantial were of secondary importance to those who build the dam (Abbey 65).

So when the floodgates are opened, and all the nature lovers leave, I suppose a lot of park rangers, busboys, liquor storeowners, tour bus drivers and river guides will be out of work. Gee, that’s too bad. Send them to Las Vegas, lots of similar jobs there. Except for river runners and guides, but soon they will be out of business anyway. It all goes back to the cubic feet per second and all those statistics, the people are there to do it, but the river can’t be run. Too much water, too little water, not enough water in some places, big waves coming down as the flow is regulated.

No one would claim that the dam should be operated according to the needs of the river runners. Nevertheless, the hundreds of thousands of people who have made the trip through the canyon have also come to care for the preservation of its environment, and their concerns will always be part of any controversy over changes in the dam (Carothers 83).

They have back-ups on the river now. Traffic jams on the god- forsaken river no one was to visit. All caused by the dam and Lake Powell.

Call me crazy, but it seems to me that J.W.Powell wouldn’t want the stinking cesspool named for him. Taking his child and making it into Frankenstein. And who did it to him?

Who is this B.L.M.?

The Bureau of Reclamation is comfortably obscure, nestled in the Department of the Interior, insulated from too much Congressional scrutiny by the fact that it earned a good reputation in its early years of reclaiming arid lands, and protected too…From this political fastness, however, the B of R has bodied forth public works projects that have irreparably damaged the West’s environment, systematically ignored Indians’ rights to water, spent million’s of taxpayer’s on unneeded irrigation, hurt agriculture nationwide, and subsidized a few wealthy farmers to the tune of millions of dollars. From its most famous project, Hoover Dam, to its most ambitious proposal, a billion dollar Central Arizona Project that will serve no purpose, the Bureau has run from boondoggle to boondoggle, chanting the tired litany of “improving nature” (Berkman 1).

Whew… Well ’tis nice to see that the government is involved. Right? And they have control over my land, your land, no ones

land. OH, WHAT TO DO

Alternatives, there are plenty. Enough to satisfy the revolting excess and greed of electricity pits like Las Vegas? Solar, Cogeneration (poop burning) are the best. More efficiency in others would work as well. And not to get too crazy, a change in lifestyle, ideals, sensibilities and needs of the country would work quite nicely.

It will take a while, but long before it becomes a solid mass of mud Lake Powell (jewel of the Colorado) will enjoy a passing fame as the biggest sewage lagoon in the American Southwest (Abbey 69).

Or we could have a gigantic cement and steel monument with a golden, living river flowing underneath that future generations will look at, nod their heads and laugh at our folly. Ha, ha, ha.

Some People say we need the power, the water, the plan won’t work. Other people try to blow it up or otherwise rid the world of this large brick which would destroy us. They call these people radicals and crazy. Most don’t know and don’t care. They should.

“… we can shut down the Glen Canyon power plant, open the diversion tunnels, and drain the reservoir. This will no doubt expose a drear and hideous scene: immense mud flats and whole plateaus of sodden garbage strewn with dead trees, sunken boats, the skeletons of cattle and long-forgotten hatchery-bass fishermen. But to those who find the prospect too appalling I say, give Nature a

little time. In five years, at most ten, the sun and wind and storms will cleanse and sterilize the repellant mess. The inevitable floods will soon remove all that does not belong within the canyons…Within a generation-thirty years- I predict the river and canyons will bear a decent resemblance to their former selves. Within the lifetime of our children Glen Canyon and the living river, heart of the canyonlands, will be restored to us. The wilderness will again belong to the people (Abbey 69).

I can hardly wait. Yee hah and Hieghty ho!

BIBLIOGRAPHY

Abbey, Edward. “Even the Bad Guys Wear White Hats. Cowboys, Ranchers, and the Ruin of the West,” Harper’s (January 1986): 51-55.

Abbey, Edward. Slickrock, The Canyon Country of Southeast Utah. San Francisco.New York:Sierra Club, 1971.

Berkman, Richard L. and W. Kip Viscusi, DAMMING THE WEST, Study Group Report on the Bureau of Reclamation. New York:Grossman Publishers, 1973.

Carothers, Steven W. and Robert Dolan. “Dam Changes on the Colorado River,” Natural History (January 1982): 75-83.

Davis, Tony. “Managing to Keep Rivers Wild,” Technology Review (May/June 1986): 26-33.

Fradkin, Philip L. A River No More, The Colorado River and the West. New York:Alfred A. Knopf, Inc., 1981.

Hopkins, Virginia. The Colorado River, Portraits of America. Secaucus, New Jersey:Chartwell Books, Inc.., 1985.

Lavender, David. “First Conquest of the Colorado, The Powell Expeditions,” National Parks (May/June 1986): 16-21.

MacDougall, William. “Will Grand Canyon Turn Into a Lake of Mud?” U.S. News & World Report (September 1981): 51-54.

“Our Mighty and Troubled Colorado,” Sunset, The Magazine of Western Living (May 1983): 95-106.

Powell, John Wesley-Eliot Porter. Down the Colorado, John Wesley Powell, Diary of the First Trip Through the Grand Canyon 1869. New York:E. P. Dutton & Co., Inc., 1969.

Roberts, John. “The Dam is Killing the Grand Canyon,” National Parks (July/August 1981): 19-25.

Stegner, Wallace. Beyond the Hundredth Meridian, John Wesley Powell and the Second Opening of the West. Lincoln, Nebraska: University of Nebraska Press, 1982.

Watkins, T. H. and Contributors, THE GRAND COLORADO, The Story of a River and Its Canyons. Los Angeles: American West Publishing Company, 1969.

—————–

Dave Olson P.O. Box 7612 Olympia, WA 98507 www.uncleweed.net

 1988-89, written in SLC & Moab, UT


Drug Court – Observations on Restorative and Rehabilitative Justice

Drug Court – Observations on Restorative and Rehabilitative Justice

By Dave Olson

Originally written for “Visions of Justice” program The Evergreen State College, Winter 2004

An Overview of the Drug Court Model

The Drug Court program of the Thurston County Superior Court is designed as a rehabilitative program for non-violent drug and related property crime offenders. The program features intensive counseling, strict supervision, payment of treatment fees, and therapy techniques aimed at assisting the successful participant in becoming a responsible community member.

The program relies on a working partnership between prosecutors, assigned defense counsel, sheriff and police departments, and a third-party chemical dependency counseling facility. These entities work together in co-operation with the aim of bringing a disposition that benefits both society, and the offender. With each successful program graduate, society reaps increased public safety as well as economic rewards. Unlike traditional retributive punishments such as incarceration, the successful drug court program client learns the emotional and vocational skills to build a productive life while dealing with chemical addiction problems.

At a Thurston County Chamber of Commerce forum about the Drug Court program and the proposed $120,000,000 “Regional Justice Facility”, I engaged in short discussion with Thurston County Superior Court Judge, Richard A. Strophy. Besides adjudicating his share of cases, he also is the presiding judge for the Drug Court program, he remarked that, “For a quarter of what they want spend on the new jail, we could expand drug court program and we could get by on what we have.” He went on to express his opinion that prevention, rehabilitation, and personal responsibility for actions were critical steps in addressing both drug problems and the related crimes which support drug addict’s habits, particularly property crimes such as theft, as well as domestic violence.

The need for Drug Court is wrought from the endless cycle of re-offenders who are unable to break their habit and have limited capacity to find adequate resources to help. As a result, the same drug offenders revolve through the court system causing significant expense both in a jail beds and court costs, but also societal opportunity costs as drug offenses pull money away from public health and prevention programs further exacerbating the situation.

In his book “Reinventing Justice: The American Drug Court Movement,” James L Nolan, Jr. puts forth, “The burgeoning drug court movement first developed in response to the growing number of drug cases overcrowding America’s criminal court calendars. … The innovative adjudicative model draws heavily on the American therapeutic idiom to give direction and meaning to its philosophy, forms, and procedures.i”

A study by the Scottish Executive called “International Experience of Drug Courts”, points out that, “The main impetus for developing drug courts at a local level came from individual judges who were frustrated at the single ‘revolving door’ of drugs and crime. Nationally, however, drug courts have come to be seen as a part

2

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

solution to the United States quadrupling of the national prison population since the 1980s (making it the highest among Western democracies).”ii

The Thurston County Drug Court is not the first nor alone in this progressive foray into alternative justice. As Nolan continues, “Since the first drug course was launched in Dade County, Florida, in 1989, more than eight hundred similar courts have been initiated or are in the planning stages. The model has received almost uniformly positive media coverage and overwhelming support at both the national and local levels. Judges celebrate the drug court as an exciting movement, a new way of justice, even a revolution in American jurisprudence.” iii

The Scottish Executive study found that, “Since the first programmes (sic) started in 1998, more than 140,000 drug using offenders have entered comprehensive programmes that include frequent drug testing, supervision, treatment, and judicial monitoring and court-mandated sanctions.”iv

The Drug Court provides a process which enables offending members of society to heal themselves and become contributing members of society by offering combination of rehabilitative, restorative justice, as an alternative to (or in combination with), retributive justice methods.

Specifically, the Drug Court states their goals as:

• Reduce the revolving door of crime and drugs by providing treatment to drug-addicted criminal offenders

• Require strict accountability from program participants through frequent in-person court hearings and intensive monitoring

• Abstain from alcohol and drug use • Reduce emergency room and other medical costs • Reduce domestic violence • Reduce property crimes • Require completion of education • Require tax-paying employment • Decrease use of public assistance • Reduce court, jail, and prison overcrowding and costs v

But what drugs are Drug Court participants treated for? In my observations, the highly addictive and easily produced drug methamphetamine is the primary substance abuse problem handled by Drug Court program. All cases I observed save two, were for meth related charges. Incidentally, the exceptions were cocaine and prescription pain-pills.

3

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

While beyond the scope of this paper, I feel it is worth pointing out that ‘drugs’ is a somewhat nebulous moniker, which includes myriad illicit substances, which are organized by federal law into ‘schedules.’

While the State Board of Pharmacology ostensibly makes decisions for the state pertaining to classification of illegal drugs in the schedules, in reality the federal DEA and FDA (as well as International treaties) dictate policy.

The Washington RCW states that Schedule One drugs: (1) have high potential for abuse; (2) have no currently accepted medical use in treatment in the United States; and (3) lack accepted safety for use in treatment under medical supervisionvi.

Drugs in this category run a laundry list from heroin, to hallucegenics, to cannabis. Schedule Two contains opium, cocaine, morphine, methamphetamine, and methadone.

However, cannabis possession under forty grams is a misdemeanor in Washington and offenders are (usually) not referred to Drug Courtvii.

Nevertheless, cannabis charges cause a significant strain on the court system as a whole. Indeed in 2000, 730,000 people were charged for some cannabis offense. Approximately 60,000 Americans are in jail for cannabis-related charges, 16,000 of which are simply for possession. Since 1992, the US has increased pot charges laid by 200%,viii a statistic, which calls to question the motives behind society’s choice to arrest and punish non-violent offenders.

Judicial Philosophy

Drug Court is an example of a Utilitarian approach to justice. Rather than making the offender “pay” for the crime (addiction) at significant expense, Drug Court seeks to counsel and reduce the opportunity for further harm to society “fixing” the problem when the opportunity arises through an arrest incident.

Besides the program’s emphasis on rehabilitative concepts of justice, there is some amount of restorative justice (improving yourself to be a better member of community) as well as retribution justice through jail time as deterrent/punishment for program infractions.

The Judge constantly emphasizes taking responsibilities for actions, making and keeping promises to self/court/other, discipline and organization – all tools need to contribute positively to society. This includes forming relationships, trusting others, and working in groups in a non-adversarial, results-oriented environment.

4

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

The Scottish Executive report found that, “one of the important differences between drug courts and other types of criminal justice based treatment interventions is the unique linkages and partnerships. In addition, drug courts depart from the traditional court structure through its encouragement of a non-adversarial relationship amongst the key players. These qualitative impacts are somewhat difficult to measure and there is no national data that fully explores the impact of this. However, a number of drug court evaluations have sited the successful development and implementation and criminal justice/treatment partnerships and a high degree of satisfaction among drug court staff with the inter-agency relationship.”ix

Drug Court Process

Arraignment

The Drug Court is the first stop for most all felony drug–related offenses in the county which do not have additional aggravating factors (such as assault or weapons charges), and if the accused does not have significant prior convictions.

At this stage of the process, the Drug Court is rather similar to most any other courtroom with a few key differences. At the arraignment hearing, the Judge is joined by the “usual cast” of prosecuting and defense attorneys, clerk, reporter, bailiff, and a jury box with (rather haggard-looking), cuffed prisoners in orange jumpsuits. Additionally, at least in addition to (I believe) Drug Court program administrators, two counselors were in attendance, working closely with the attorneys to determine eligibility for the program, and scheduling Drug Court candidates for intake counseling.

Not all of the arraigned defendants request participation in the Drug Court program, nor would all qualify. Other defendants arraigned pled “not-guilty” with the advice of either a personal attorney or an attorney from the Office of Assigned Counsel. In such cases, a pre-trial and trial date was set along with conditions of release. Also as per usual, in the event of a “no-show”, the Judge issues a no-bail warrant.

My observations lead me to believe that the Drug Court team are accustomed to working together and are committed to fairness and respect to the participants who sincerely seek help. There seems to be a somewhat unspoken flow to their process and the atmosphere, while dignified, is much less adversarial than a ‘normal’ court proceeding.

Eligibility and Admission

The Judge, attorneys and counselors review the defendant’s record to ascertain initial eligibility. In each arraignment I observed, the charges were felony possession of meth-amphetamine though the Drug Court program also accepts non-violent perpetrators accused of property crimes which are likely associated with substance abuse lifestyle (i.e.: breaking and entering, theft, vandalism). The Deputy Prosecuting Attorney reviews the case to determine eligibility based on the existence of prior and/or pending charges which would disqualify the defendant.

5

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

One example I witnessed during a non-Drug Court arraignment hearing with Judge Casey presiding, a woman (Anderson, Monte Jean vs. State of Wa. 2/4/04), was read her charges of felony possession of meth- amphetimine and ephedrine (charges 04-00122-0, 125-4, 178-5, 124-6, 121-1, 154-8). I immediately wondered why she was not a Drug Court candidate, however I realized after the prosecutor pointed out that she had seventeen prior felony convictions for similar charges, that she would not be a candidate for Drug Court.

The Drug Court’s eligibility requirements exclude offenders with numerous prior convictions at the discretion of the Prosecutor. Thus, only candidates with a higher chance of success are generally referred to the program. Instead this defendant would likely go to trail (or plea) and, if found guilty, sentenced according to Chapter 9.94A of the RCW Sentencing Reform Act of 1981 and Article IV “Offenses and Penalties” of RCW 69.50.4013 in which possession is usually a Class ‘C’ felony.

If the prosecutor recommends Drug Court program eligibility, the Office of Assigned Counsel advises the defendant of his/her options. The Judge asks the Defendant if they wish to participate in the Drug Court program. If the Defendant chooses the Drug Court option (instead of going to trial, or pleading guilty), the program administrator then interviews him/her.

Upon acceptance into the program by the program administrator, the candidate is obliged to sign a contract and he/she is given a Program Handbook, and assigned to numerous tasks and appointments required as part of the treatment and restitution process.

Intake

The next step is an appointment to St. Peter’s Chemical Dependency Unit for an intake interview with treatment counselors, along with baseline urinalysis testing. After the intake, the participant is assigned to a primary counselor who then works out a treatment schedule and plan addressing the needs of the individual participant.

If the defendant is incarcerated, the Judge issues a furlough order allowing the defendant to travel to the appointment. The Judge carefully informs the defendant of the additional felony charges if the expiration time of the furlough order is not carefully observed.

Treatment and Supervision

Though it is beyond the scope of the paper to tackle the various levels of addiction, suffice to say that the Drug Court program usually takes 12-18 months. On-going throughout the phases of the program, various supervisory and treatment techniques are employed. Specifically:

6

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

Random urinalysis for illicit drug and alcohol – UA requirements are very strict and frequent. Missed tests and non-standard test results (ie: too-watery, evidence of tampering, not watery-enough), are considered the same as a “dirty” test result. Such failure results in court-imposed sanctions (usually jail time) and reduction in treatment phase level.

Court progress review – Beginning at once per week in Phase One to once a month in later phases, the Drug Court participant appears before the bench and discusses progress with a Judge and treatment counselors to maintain consistent accountability. Additionally, the Drug Court staff, including the Judge and treatment counselors, meet weekly to discuss participants’ progress or problems and bring up topics from their meetings with the participants during their review hearings.

In my observation, the tone of the court progress reviews can perhaps best be described as “parental” though at the same time, the mood is (oddly) casual. The participants address counselors in a first name basis and ask the Judge, “How ya doing?” Clothes are sometimes grubby, hats not immediately removed, and manners somewhat lacking, but the focus is clearly on real results, not appearances.

Judge Strophy plays his role as a stern, but caring father figure who seeks to help the participant help themselves. He is conversational and sincere, but terse and commanding as needed. He asks about home life situations, jobs, meetings, relationships, kids, significant others and just about anything else.

A sample paraphrasing from his conversation with a 23-year-old white female named April:

Judge: Congratulations, 239 days clean and sober. (Applause in the crowd) Judge: So what’s been going on in your life? April: Still under house arrest (from a charge in Lewis county) so I haven’t really been going anywhere.

Judge: How are you doing at your Phase three studies? April: Working on anger management (brief conversation about what she’s learned about dealing with anger). Judge: Sounds like things are going well, congratulations again on your sobriety. How’s your living situation? April: Boyfriend just got out of jail but he went to live with his dad in Lake Havasu Arizona. Judge: How do you feel about that? April: Actually glad and relieved. Judge: What are your plans for your living situation? April: It is really crowded at my house now so I hope to move once I am off house arrest and on my feet with bills. Judge: You seem to be making progress. Anything else? April: Can I go “Clean and Free” on (such and such date)? Judge: (reviews record) OK (sets stipulation on UA) Anything else?

In another review with a 20-something white male named Jason, the Judge and participant discussed progress with therapy work. Additionally, the Judge admonished the participant to be part of positive change to the community, and to “take life on it’s own terms,” plus learn the tools to cope with the issues and challenges in life. The Judge asked about the participant’s father who had recently fallen ill. Jason discussed how his dad

7

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

had been supportive during recovery and now they are closer than ever. Jason also related an anecdote about being rear-ended on the highway and how he is able to cope better thanks to his therapy. The Judge remarked how “blessings sometimes come disguised” and scheduled the next court date. He also presented a “purple coin” to commemorate nine months of sobriety and the defendant (rather proudly) announced he had made payment on his fines. The Judge commended him on using his tax return to pay his treatment costs and fines although scoffed somewhat when Jason said that he had paid (only) $300 out of a $3500 tax return.

Another progress review featured the Judge getting a bit more stern with a participant who wasn’t really “buying into” the program. In fact, the participant had once dropped out of the program before and was given a second chance. The Judge discussed how “change is a process” and then extolled him to “get real,” “speak from the heart,” “no masking your emotions,” “don’t manipulate,” “dig deeper,” “toe the mark,” and “decide who you want to be, you are in your thirties, you have to figure it out.”

My anecdotal observations of the court proceedings suggest a pattern of additional aggravating factors in offender’s lives, notably: challenging domestic situations, trouble at school, adjusting to life after high school, difficulty handling unforeseen stress, and other extenuating lifestyle circumstances, intentional or not.

Meetings – In addition to the court dates, participants are heavily scheduled with meetings and treatment sessions throughout the week. My personal observations noticed one participant reviewing her schedule with a counselor (paraphrasing), “Education session on Saturday, group process on Monday, 3 twelve-step program meetings and 12 more community service hours (to make up for a missed meeting), by next court date on Tuesday.”

Participants also must attend a required number of court-approved “12-step” group support meetings. In my observations, the court allowed the participant to attend Alcoholics Anonymous, Narcotics Anonymous, or Analon. Attendance is supported with signed logbooks and the participant may attend only once per day (ie: cannot double up on one day and skip the next).

Failure to attend required meetings of any kind results in court-imposed sanction, usually community service, and the participant must take responsibility for failure to attend. In other words, the Judge doesn’t want to hear excuses and expects the individual to do whatever it takes to attend. Responsibility is rewarded by permission to attend out of town events.

During a Drug Court progress review session, I observed at least three participants requesting permission to attend an event called, “Clean and Fee.” The Judge reviewed their record carefully before granting permission contingent on doing a UA test on the Friday before leaving and again on the following Monday before noon. Failure to perform test would result in revocation of privileges and additional sanctions.

8

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

Payment of treatment fees – Drug Court participants pay for their own treatment through Providence St. Peter Chemical Dependency Center. Doing so saves tax dollars for other programs and increases participant’s sense of responsibility for personal improvement. Additionally, some participants have punitive fines stemming from other related charge that need to paid before graduating.

Moral Reconation Therapy (MRT) – While not privy to actual therapy sessions, my understanding is the MRT is a trademarked and copyrighted series of training tools for instructing participants in morals, thinking, attitudes, decision-making, and other characteristics of a “Normal, Ordinary, Responsible Person (NORP).”

In court process review sessions, the Judge frequently asked participants about various concepts discussed in lessons books that are a part of this therapy technique.

A study by the University of Maryland for the Washington State Legislature describes MRT further, “Moral Reconation Therapy was developed in the tradition of the moral development approach as a way of reducing the recidivism by increasing the moral reasoning abilities of offenders. Specifically, the program incorporates seven elements of treatment; confrontation and assessment of self, assessment of current relationships, reinforcement of positive behavior, identity-formation, enhancement of self-concept, decreasing hedonistic orientation and increasing delay of gratification, and development of higher stages of moral reasoning.x”

Eye Movement Desensitization and Reprocessing – EMDR is an innovation technique designed to provide rehabilitation from Post Traumatic Stress Disorder including irrational negative beliefs, unregulated emotions, and trigger responses.

While not used extensively according to St. Peter Chemical Dependency Center counselor, Hollie Christiancy, due to the expensexi, EMDR is basically a therapeutic technique in which the patients move their eyes back and forth while concentrating on the problem. The therapist waves a stick or light in front of the patient and the patient is supposed to follow the moving stick or light with their eyes.xii

Proponents of EMDR (developed by Francine Shapiro) suggest that, “after EMDR processing, clients generally report that the emotional distress related to the memory has been eliminated, or greatly decreased, and that they have gained important cognitive insights.”xiii

Comprehensive Treatment Services – The Drug Court program emphasizes the participant taking responsibility for all aspects of life. This tasks include: gaining employment (complete with W-2); organizing finances and paying fees and fines; re-building relationships with family and friends; tending to medical, dental and exercise needs; improving home living situation as needed; and even getting in touch with one’s spirituality.

Phases

The treatment program is divided into three Phases providing obtainable targets to the participant.

9

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

Phase One: Orientation/Intake: 3-4 months Intake, assessment, and treatment plan Drug and alcohol education Moral Reconation Therapy

Individual and group counseling

Phase Two: Intensive Counseling: 5-8 months Relapse prevention sessions Referral to community resources and services Vocational and educational service referrals

Phase Three: Referral Monitoring: 4-6 months Individual and group counseling Completion of individual needs workbook Completion of personal recovery plan Community linkagesxiv

At each phase-level obtained, and at various sobriety milestones, the Judge in a brief ceremony in the courtroom presents the participant colored, commemorative coins designating achievement. In the event of a transgression, the participant is obliged to return the coins and earn them back through continued sobriety and passing phase requirements.

Graduation

Graduation Requirements

Completion of all three phases of treatment Six months minimum abstinence Payment of all fees and fines (if any) Four months full time employment and/or education GED or High School diplomaxv

Graduation Ceremony Upon fulfilling the graduation requirements, the participants are feted with at a festive ceremony held right in the Courtroom. Attending the Drug Court graduation is a unique courtroom experience complete with punch and cookies, applause, embracing, presentation of gifts, crying, cheering and even Judge Strophy “teasing” the participants in his paternal manner by showing their intake “mug shots” to the assembled crowd.

Rather than the usual somber but anxious courtroom atmosphere, the Drug Court graduation crowd is filled with relieved families, beaming spouses, and proud counselors and even a few police officers and curious community members. The mood is akin to an “old time revival” crossed with an “AA” meeting. Each graduate is afforded the full attention of the courtroom while his or her full Drug Court history is read aloud. The narrative report includes a description of the participant’s attitude upon first entering Drug Court and significant events (both positive and negative) throughout their Drug Court supervision period. Plus a complete timeline of their substance abuse history, significant challenges, achievements, personality characteristics, school and work successes and even family matters are discussed on the record.

10

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

The graduate’s primary counselor then speaks from a treatment standpoint more about performance during the myriad counseling sessions. The emotion expressed by the counselors clearly shows the difficult yet rewarding bond they develop with the participants. The counselor then presents the graduate with a ceremonial mug filled with various symbolic tokens of encouragement and they share an embrace. Indeed, considering the perseverance required to graduate, the counselor must feel a significant sense of pride and satisfaction with each successful participant.

Next up is the Judge who makes some remarks about the graduate path towards becoming a responsible person in significant detail. In some cases, he described the “vacant spaced out look” when they started the program, or cited a bad attitude or rebellious nature requiring focusing onto positive tasks. Finally, he presents a graduation certificate then poses with the grad for a photo.

At last, the graduate takes the stand to address the crowd and thanks those who supported him/her through the process. Amongst the frequent applause, there are at least a few tear-jerking moments and tissues are common as the graduates speak with near religious zeal about their life changes and future plans to be a responsible member of society.

Effectiveness

How does one rate the effectiveness of the brand of justice dispensed in the Thurston County Drug Court? I think three factors are crucial to balance both the tangible and intangible integers of success. 1) Recidivism – How many graduates are re-arrested compared with non-participants?; 2) Cost Benefit – How much does it cost to administer the program combined with the savings in related problems caused by drug addiction?; and 3) Societal Gain – Is the benefit of a responsible member of society worth more than the ‘moral satisfaction’ of retributive punishment?

I will address each in turn with a few empirical notes:

First of all, recidivism. The aforementioned Scottish Executives report cites a study by the National Center on Addiction and Substance Abuse at Columbia University which found that in a Delaware Adult Drug Court, 4% were re-arrested during treatment. In Ventura County, California, drug court participants produced a 12% re- arrest rate compared to a 32% re-arrest rate for a comparison group over an eight-month period. In Jackson County (MO?), the study found a 4% re-arrest rate compared to 13% over a six-month period.xvi

Thurston County Drug Court supplied statistics put forth recidivism rates which appear favorable in comparison with other State penal entities. Specifically: State of Washington Prison: 47% Thurston County Jail: 72%

Thurston County Drug Court: 6%

11

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

The University of Maryland study agrees when discussing MRT’s (the primary therapy technique used by the Drug Court) success rate, saying, “Moral Reconation Therapy is effective in reducing the recidivism of offenders. At least five studies of sufficiently rigorous scientific methodology, have found significantly lower recidivism rates between MRT participants and comparison groups on at least some measures of recidivism.”xvii

Second, cost benefit. Again, the Scottish Executive study cites a Multnomah County, Oregon criminal justice system cost savings of $2,476,795 over a two-year period. After the one million dollars of operating the drug court program. The savings increase to $10,223,532 over two years when estimated savings in victimization, theft reduction, public assistance and medical costs are added in.xviii

Thurston County Superior Court produced materials also compare average treatment duration and cost per day in various supervisory institutionsxix: State of Washington Prison: $67 – Average length of supervision/treatment: 76 days Thurston County Jail: $54 – Average length of supervision/treatment: 95 days

Thurston County Drug Court: $14 – Average length of supervision/treatment: 365 days

Finally, the societal benefits. This is the most difficult benefit to gauge since questions of a moral payment of a debt to society clouds the objectivity required to effect a just ruling. All we humans carry unique subjective political and emotional conceptions which color our feelings as to whether the offender has wronged society. The US legal system tries individuals against the State as though society (or one of it’s parts) is harmed each time a law is broken. However, in case of a crime when the only victim is the offender herself, the case for a moral payment to society becomes less relevant.

Rather, treating addiction from a harm reduction trajectory – specifically comprehensive treatment supervised by the Courts – serves society’s interests better than incarceration because: the offender becomes a contributing member of society (or at least not a perennial drain on government resources); the victim (usually the offender and his/her family) gains a sense of closure and therapeutic healing; and the community as a whole enjoys increased public safety (or at least a reduction in public nuisance), and economically both through decreased criminal justice costs, and the ancillary cost savings (further such savings also provides opportunity for prevention and education programs).

Additionally, I will also contend that society also benefits morally by showing empathy in treating and preparing non-violent drug offenders for life in society. The additional negative attributes of incarceration (introduction to more criminal elements, violent society) further supports rehabilitation for non-chronic offenders. In all, considering whether “Justice is Served,” I would suggest, yes.

12

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

Endnotes

i Nolan, James L. Jr., “Reinventing Justice: The American Drug Court Movement,” Princeton University Press, 2002. Quoted from http://pup.princeton.edu/chapters/i7085.html.

ii Scottish Executive, “International Experience of Drug Courts,” Chapter 1: Background to the US Drug Court System. Quoted from http://www.scotland.gov.uk/cru/kd01/green/courts05.htm.

iii Ibid, Nolan.

iv Ibid, Scottish Executive.

v Thurston County Superior Court “Drug Court Program” brochure, 2004(?).

vi Revised Code of Washington, RCW 69.50.201-212 “Authority to change schedules of controlled substances.” ARTICLE II STANDARDS AND SCHEDULES

vii RCW 69.50.4014, “Possession of forty grams or less of marihuana — Penalty.” viii Cannabis Culture magazine, Marc Emery Publisher, Vancouver BC, Canada, Feb./March 2004. ix Ibid, Scottish Executive, Chapter 2.

x University of Maryland: Department of Criminology and Criminal Justice, “An Examination of the Effectiveness of the Type of Rehabilitation Programs offered by Washington State Department of Corrections,” Chapter Six, “Cognitive Behavioral Therapy Programs: Moral Reconation Therapy and What Works In Corrections?” Submitted to the State of Washington Legislature Joint Audit and Review Committee, June 1998.

xi Christiancy, Hollie, “Personal correspondence with author via e-mail”, March, 2004.

xii Robert Todd Carroll, “Eye Movement Desensitization and Reprocessing,” The Skeptic’s Dictionary. Quoted from http://skepdic.com/emdr.html.

xiii Shapiro, Francine et al, “A Brief Description of EMDR.” Quoted from http://ww.emdr.com/briefdes.htm.

xiv Ibid, Thurston County Superior Court.

xv Ibid, Thurston County Superior Court.

xvi Scottish Executive International Experience of Drug Courts,” Chapter 2: Drug Court Evaluation of US Drug Court System. Quoted from http://www.scotland.gov.uk/cru/kd01/green/courts06.htm.

xvii Ibid, University of Maryland. xviii Ibid, Scottish Executive, Chapter 2. xix Ibid, Thurston County Superior Court.

13

© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice


Should U.S. Military Evaders Be Extradited From Canada? Pro and Con Arguments

Should U.S. Military Evaders Be Extradited From Canada? Pro and Con Arguments

By Dave Olson, August 2004

– 1- © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

Yes. Military service evaders are in violation of U.S. laws, as well as personally breaching their contract and oath. Alternative programs exist for legitimate conscientious objectors to fulfill their duties in a responsible manner. Harboring cowardly deserters strains International relations and also drains the resources of the host country.

No. AWOL personnel would be prosecuted, and possibly persecuted or executed, if repatriated to the United States. Military personnel, who oppose war for moral, ethical, or political reasons, should be recognized as political refuges and granted asylum if requested. No one should be forced to put their life at risk for an illegal war or be obliged to obey immoral orders.

– 2- © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

Yes

Military service evaders are in violation of U.S. laws, as well as personally breaching their contract and oath. Alternative programs exist for legitimate conscientious objectors to fulfill their duties in a responsible manner. Harboring cowardly deserters strains International relations and also drains the resources of the host country.

1) Military personnel have a legal responsibility to fulfil their required military service period.

Deserters must be extradited to ensure critical military discipline lest soldiers flee in time of war leaving their country vulnerable. Any country that harbors deserters against extradition requests is complicit with this law- breaking activity which infringes on a sovereign nation’s ability to make war.

Once a soldier has entered into a military contract, the agreement is considered binding-unless it’s changed from the top down, as in the stop-loss orders.i This is the case with recent U.S. military deserters currently in Canada, Privates Jeremy Hinzman, 25, and Brandon Hughley, 18. Hughley had been discharged but, as specified in his contract, his unit was subject to recall. The day before he was due to report to duty in the U.S. war in Iraq, he deserted to Canada rather fulfill the terms of his contract.ii In Hinzman’s case, he deserted with his family to Canada while on leave from active duty

in Afghanistan.iii These soldiers are illegally breaking their contract to the volunteer U.S. military and do not have grounds for protection from extradition after having collected military benefits and compensation for their service.

2) Individuals have a moral responsibility to serve their country regardless of personal feelings. Dissent is unpatriotic, cowardly and not a valid reason for avoiding punishment.

Soldiers’ political beliefs are not a valid reason to avoid service, nor is it the soldier’s right to refuse to fight because of their personal feelings about the legality or justness of a war.

Selective objectors or non-cooperators who do not follow the prescribed processes for alternative service, are breaking the law and the oath they took upon enlisting in which they promise to obey the orders of the President and appointed officers.iv

Popular opinion suggests that, “Soldiers who run away from service are cowards, pain and simple. … they should be returned to the United States to face trial as deserters and failing to honor their commitment to serve their country.”v

– 4- © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

Members of Pvt. Hinzman’s own family suggest this point, “his grandfather, a former US Navy man and the father figure in his life, expressed disappointment that Hinzman had not fulfilled his four-year commitment to the military.”vi

Serving in the military is a moral commitment essential to the fiber of a country, and deserting soldiers should not be protected from extradition as a result of desertion because of personal feelings which lead to desertion.

3) Programs exist for alternative service for legitimate conscientious objectors applicants. Those who do not follow the prescribed process do not deserve protection from prosecution.

The U.S. offers a defined process for obtaining Conscientious Objector status, as well as provisions for alternative service, for those who have a documentable history of activism against war or combat.

Appropriate status is available both for Conscientious Objectors – those who oppose any participation in war by reason of religious, ethical or moral belief – as well as Non-combatant Conscientious Objectors, who reject killing but will serve in an alternate capacity without weapons (i.e. medical work, supply work).vii

– 5- © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

Extradition is appropriate for active-duty enlistees who apply for Conscientious Objector status while on active-duty and refuse to serve when their claim is denied. Often these soldiers apply without providing the essential documented evidence to legitimately claim for status such as participation in a peace/non-violence advocating church or organization. In Pte. Hinzman’s case, he applied for conscientious objector status and became a religious Quaker only after heading into combat. viii

The CO process provides for alternative service to legitimate applicants who can document a long-standing moral position on war. Pte. Hughley served his initial period and only declared to be opposed to war after being recalled and he offered primarily political and psychological reasons for his objections.ix

The American Friends Service Committee – the activist organization of Quakers recognize the importance of documentation, “… registering as a CO and documenting one’s position as a CO at the time of registration is crucial. In the event of a draft, if one claims to be a CO but has not documented their position as a CO, they may not be taken seriously.”x

The CO program adequately protects legitimate objectors, and opportunistic deserters who do not qualify for status do not deserve additional protection from extradition.

– 6- © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

4) The U.S. does not unduly punish repatriated deserters, nor are persecution or execution common, therefore soldiers do not deserve another country’s protection against the U.S.

In order to legitimately claim refuge status in a country, the deserting soldier must prove that they would face not just prosecution, but also persecution, if returned to their home country. This burden of proof falls to soldiers fleeing from a volunteer army from a democratic country such as US, where persecution is unlikely, as well as soldiers who would be executed if repatriated.

Audrey Macklin, law professor at University of Toronto puts forth that because the U.S. has forms of alternative service and a process for applying for conscientious objector status, military service evaders will have a hard time convincing Canadian judges that they are indeed refuges.xi Last year, the Canadian Immigration and Refuse Board received 317 American applications for refuge status and accepted none.xii

U.S. Army law details their maximum punishment for desertion:

Completed or attempted desertion with intent to avoid hazardous duty or to shirk important service. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. Completed or attempted desertion with intent to avoid hazardous duty or to shirk important service. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

– 7- © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

This five-year maximum punishment for desertion in the U.S. does not constitute persecution as required for refuge status so, deserters falsely claiming refuge status should be extradited to face the prescribed punishment.

5) Harboring military service evaders is a violation of International extradition treaties.

A law firm specializing in international prisoner matters refers to extradition as, “the formal process by which an individual is delivered from the country where he is located, the requested country, to the requesting country in order to face prosecution, or if already convicted, to serve a sentence.”xiii

However, Vancouver immigration lawyer Phil Rankin puts forth that deserters are likely to be deported even before extradition proceedings because of a lack of immigration status. “Desertion is not one of the grounds for refugee status. During the Vietnam War, nobody got refugee status, even though they had a political opinion.” Since the U.S/Canada extradition treaty doesn’t apply to deserters, he says, “they pretty much just deport you across the border and take you to the brig.”

The federal government has entered into border accords with the U.S. that could make the situation of those seeking refuge, especially deserters, more difficult than in the past.xiv These International agreements are essential to

– 8- © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

diplomacy and must be honored including returning deserters to a jurisdiction to face charges.

6) Harboring deserters strains foreign relations with the host country.

Harboring deserters causes strain and tension both in popular culture and the political and commercial realms.

In the case of U.S. deserters in seeking asylum in Canada during the war in Afgahnistan and Iraq, American media pundits may exact retaliation for non- extradition in the commercial world with economic boycotts, “Naturally, veterans’ groups and the US media have been outspoken in their criticism. The Fox Television personality Bill O’Reilly has called for a boycott of Canadian goods until Hinzman and another deserter living in Canada are returned to face courts martial.”xv

A Canadian journalist points out the tension resultant from the recent refuge claims, “O’Reilly (and others) can’t understand why some Canadians regard these guys as heroic for running. I suspect Canadians who aren’t lib-left, or pathologically anti-American, or with the CBC, view them with some contempt. Personally, I’ll be surprised if these two deserters are kicked out of Canada. Our authorities are unlikely to want the leftish protests, even though

– 9- © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

Prime Minister Paul Martin is anxious to restore cordial relations with the U.S. We shall see.”xvi

A policy of non-extradition may appear sympathetic at first in the host country but popular opinion may quickly change to frustration. In Canada, there may be a feeling of resentment towards the drain on social services and employment opportunities denied legitimate citizens and also by those who do not agree with the political stance of harboring criminals and the reflection it shows about their country as soft on crime.xvii

To avoid International tension and unwanted conflicts in political and popular culture, criminals should not be harbored but rather, expediently extradited to face charges.

– 10 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

Endnotes for Yes

i Geoff Olson, “Last refuge,” Vancouver Courier, Jan. 23 2004, August17 2004, http://www.notacolony.ca/0104news/012304A%20Last%20refuge.htm.

ii Anne McIlory, “Flight from Fight,” The Guardian, April13 2004.

iii Democracy Now! With Amy Goodman, “Echoes of Vietnam – Solider Fights Extradition in Canada, Interview with Jeremy Hinzman,” July 15 2004, August 14 2004, http://www.stopthedraft.com/index.php?articleID=3435.

iv “Oaths of Enlistment and Oaths of Office,” U.S. Military Center of Military History, July 27 2004, August 17, 2004, http://www.army.mil/cmh-pg/faq/oaths.htm.

v “ I do solemnly swear … unless …,” Slobokan’s Site O’ Sctuff, July 9 2004, August 17 2004, http://www.slobokan.com/index.php?p=1994.

vi “US deserter bids to stay in Canada,” Sunday Herald, Newsquest Limited, May 30 2004, August 17 2004, http://globalsecurity.com/democracy/us_deserter.htm.

vii “General Information about Conscientious Objection,” American Friends Service Committee, January 1 2001, August 14 2004, http://www.stopthedraft.com/index.php?articleID=1471.

viii Jeremy Hinzman, “Background,” Jeremy Hinzman website, August 17, 2004, http://www.jeremyhinzman.net/background.html.

ix Anne McIlory. x “General information about conscientious objection.”

xi “Canadian Peace Activists Welcome American Iraq War Deserters,” Agence France-Presse, May 23, 2004, August 17, 2004, http://www.stopthedraft.com/index.php?articleID=3119.

xii Anne McIlory.

xiii McNabb and Associates, P.C., “Practice Areas – International Extradition,” August 17 2004, http://www.internationalextradition.com/canada_stat.htm.

xiv Geoff Olson. xv “US deserter bids to stay in Canada.”

xvi Peter Worthington, “Their fears may cost us,” Canoe website, May 1 2004, August 17 2004, http://www.canoe.ca/NewsStand/Columnists/Toronto/Peter_Worthington/2004/05/01/pf- 442767.html.

xvii Lorne Olson of Surrey, B.C., Canada, Personal Interview, August 24, 2004.

– 11 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

No

Deserting military personnel who conscientiously object to war for moral, ethical or political reasons should be granted asylum as political refuges and not extradited, for the following reasons:

1) Military service evaders would be prosecuted, and possibly persecuted or executed, if repatriated.

Fugitive American soldiers, Jeremy Hinzman and Brandon Hughley, will argue to Canada’s Immigration and Refuge Board that they face persecution in the U.S. because of their refusal to fight in Iraq based on their strong political beliefs and therefore should be granted political asylum status in Canada.i Canada granting their requests would opine that deserters are likely to be persecuted not just prosecuted, if returned to the U.S.

Jeffry House, Hughley’s attorney – incidentally a draft resister who fled to Canada himself – describes their case for refuge status which points out that the illegality of the war makes prosecution for non-participation, persecution. “Canada evaluates refugee claimants based on the Geneva Convention on refugees and in the case of soldiers it says that soldiers who refuse to participate in a war considered illegal by the international community, and face prosecution for that refusal, amounts to persecution on the basis of political opinion.”

– 12 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

According to U.S. military law, a soldier who fails to report for duty within 30 days is AWOL, with a maximum penalty of five years confinement, forfeiture of all pay and allowances, and a dishonorable discharge. After 30 days, he or she is technically a deserter. The maximum penalty for desertion in time of war is death, although no U.S. soldier has been executed for desertion since World War II.ii

The E.U.’s Charter of Fundamental Right, article 19, paragraph 2 states, “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.iii” However proving exactly what is meant by “serious risk” or “degrading treatment” can prove difficult for a court of law to determine.

This (albeit slight) chance of the death penalty may constitutionally prevent some countries (examples European Union, East Timor, Portugal) from extraditing deserters to the US though has not be tested in International courts in the case of the recent U.S.-led war in Middle East.

With this in mind, no country should agree to extradite fugitive military personnel unless the U.S. abolishes the death penalty for deserters and takes measure to prevent persecution.

– 13 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

2) No one, regardless or contract or oath, should be obliged to obey immoral orders or punished by their refusal to do so, including refusing to kill or to put their life at risk for an illegal war.

While many soldiers may join the military willing to fight, they find themselves in a moral conundrum when they object to an illegal war, or are given orders given which violate their conscience. Indeed, recent high profile war crimes trials show no one is above criminal or moral laws, even in times of war.

David Held, puts forth in an essay, “Law and Justice in a Global Age” that, “The refusal to serve in national armies triggers a claim to a ‘higher moral court’ of rights and duties. Such claims are exemplified as well in the changing legal position of those who are willing to go to war. The recognition in international law of the offences of war crimes, genocide and crimes against humanity makes clear that acquiescence to the commands of national leaders will not be considered sufficient grounds for absolving individual guilt in these cases.”iv

In other words, one must be true to his or her self and take responsibility for their own actions or face consequences. Therefore, soldiers should have a right to recant themselves from duty if they are morally opposed to orders.

In this sense, the Hinzman and Hughley cases are akin to a successful case argued before the Canadian refuge board involving a deserting Iranian soldier who refused

– 14 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

to use to poison gas on Kurds during the Iran-Iraq war despite the threat of punishment for disobeying orders. v

Despite a verdict that would require Canada pronouncing that the US-led war in Iraq is illegal, Private Hughley is confident that Canada would allow him to stay due to because of the nature of the war. He states, “The essential key to the case is to prove the war in Iraq is illegal under international law and represents a violation of human rights.”vi

If the war is indeed illegal, and protests by avoidance legal, then countries should not extradite those who are legitimately exercising their moral right of non- participation.

3) Military volunteers may not understand the lifestyle they are committing to, or their moral values may change during their period of service. Effectuation of such moral changes (including desertion) should not be grounds for extradition and subsequent prosecution.

The aforementioned Private Hinzman, in an interview on Democracy Now, acknowledges volunteering for the military but accounts for the change in his feelings, saying, “I choose the infantry. I wasn’t assigned to it. … (but) what I wasn’t quite aware of was what an inhibition I would have to the taking of a life.”vii

– 15 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

Hinzman also pointed out practical reasons for choosing the military citing health insurance, subsidized housing and groceries, an admitted “romantic view of the army.” This changed for him after witnessing the “continuos chanting about blood and killing” and “dehumanizing of the enemy. viii” Such lifestyle encouraged an ethical change as he became a practicing Quaker and disavowed all violence and, “decided to come to Canada because I was given an order to participate in a war that I believe to be illegal and a violation of human rights and International law.”ix

Although today’s military is made up of volunteers, some believe that desertion or suicide is an alternative to fighting in the Iraq debacle.x Members of a volunteer military should not have to flee to a foreign country (and risk extradition) when their ethical stance prevents them from continuing on with military service.

4) Besides desertion (with risk of extradition), no viable means exists for some types of conscientious objectors to avoid military service. Additionally, the process has shown to be discriminatory, inconsiderate and degrading.

The Selective Service’s website describes the process for obtaining status as a CO and qualifying for Alternative Programs however, some types of objectors are not recognized by Federal Law including: 1) War Tax Objectors; 2) Selective Objectors (Object to wars considered “unjust”); 3) Nuclear Pacifists; 4) Non-Cooperators with the Draft. xi Additionally, “a man’s reasons for not wanting to participate in a war must not be based on politics, expediency, or self-interest.”

– 16 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

This eliminates many types of claims leaving legitimate conscientious objectors no choice but to abandon their units illegally despite the potential consequences. A lawyer specializing in military matters says, “When they brought them home for vacation in the US, about 15-20% simply never went back. They stayed with their families.”

While the CO process is available to active serving personnel, the application procedure has ranged from inconsiderate to punitive to applicants. The Selective Service continues their guidelines saying, “Beliefs may be moral or ethical; however, In general, the man’s lifestyle prior to making his claim must reflect his current claims.”xii

A US National Guardsman (who is a Nicaraguan and Costa Rican citizen) left his military unit after serving in Iraq because of moral objections after witnessing the shooting of civilians. xiii His application for Conscientious Objector status was denied, but rather than leave the country and risk extradition, he went into hiding for six months before standing trial and being sentenced to a year in jail, demoted to the lowest rank and had pay reduced.xiv

The US soldier in Canada, Hinzman, points out that after he applied for conscientious objector status, his duties were gradually reduced from soldier to cook to dish washer to floor scrubber to toilet cleanerxv and his application was “lostxvi.”

– 17 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

These discriminatory procedures and degrading punishments are grounds for Canada (or other countries harboring US deserters) to not repatriate conscientious objectors to face punitive measures.

5) Extraditing political prisoners will strain foreign relations as well as creating negative International attention and potential embarrassment for the U.S.

Historical precedent suggests that Canada, who harbored hundreds of thousands of conscription evaders during the Vietnam-era, would not extradite “draft dodgers” since draft resistance is not an extraditable offense. xvii However active service deserters from a volunteer army such as Hughley and Hinzman, do not have the protection of that status.

If the U.S. does seek extradition of deserters, the Canadian Prime Minster may refuse to surrender the subjects. The situations must show that, “b) the conduct in respect of which extradition is sought is a military offence that is not also an offence under criminal law; or (c) the conduct in respect of which extradition is sought is a political offence or an offence of a political character.”xviii

Such extradition feud might spark a flood of deserters, as well as producing a controversial judgement about the U.S. military policy further straining relations between these neighboring countries. With this in mind, the U.S. should not seek

– 18 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

extradition of military deserters, or in the event of conscription draft resisters, at the risk of creating a multi-national incident.

– 19 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”

Endnotes for No

i “US Soldiers Seek Asylum in Canada,” Aljazeera.Net, July 8 2004, Aug. 13, 2004, www.aljazeera.net.

ii Geoff Olson, “Last refuge,” Vancouver Courier, Jan. 23 2004, August17 2004, http://www.notacolony.ca/0104news/012304A%20Last%20refuge.htm.

iii European Union, Charter of Fundamental Rights, “Article 19 Protection in the event of removal, expulsion or extradition, Section 2,” http://www.europarl.eu.int/charter/default_en.htm.

iv David Held, “Law and Justice in a Global Age,” Social Science Research Council, November 5 2001, August 13 2004, http://www.ssrc.org/sept11/essays/held.htm

v Anne McIlory, “Flight from Fight,” The Guardian, April13 2004. vi “US Soldiers Seek Asylum in Canada”

vii Democracy Now! With Amy Goodman, “Echoes of Vietnam – Solider Fights Extradition in Canada, Interview with Jeremy Hinzman,” July 15 2004, August 14 2004, http://www.stopthedraft.com/index.php?articleID=3435.

viii Jonathan Franklin, “US army private say ‘No,’” The Guardian, February 21 2004, August 13 2004, http://www.guardian.co.uk/usa/story/0,12271,1152989.00.html

ix “General Information about Conscientious Objection,” American Friends Service Committee, January 1 2001, August 14 2004, http://www.stopthedraft.com/index.php?articleID=1471.

x “US deserter bids to stay in Canada,” Sunday Herald, Newsquest Limited, May 30 2004, August 17 2004, http://globalsecurity.com/democracy/us_deserter.htm.

xi “General Information about Conscientious Objection.”

xii “Conscientious objection and alternative service,” Selective Service website, January 1 2001, August 13 2004 http://technologyreports.net/stopthedraft/index.html?articleID=1489

xiii Barry Zellen, “A Year of Freedom, A Year of Shame,” May 23 2004, August 14 2004, http://www.stopthedraft.com/index.php?articleID=3117

xiv David Zeiger, Suzanne Goldenberg, “Sergeant Jailed for ‘Moral Objection,’” quoted from “A Year of Freedom, A Year of Shame.”

xv Democracy Now! With Amy Goodman.

xvi Jeremy Hinzman, “Background,” Jeremy Hinzman website, August 17 2004, http://www.jeremyhinzman.net/background.html.

xvii Mark Satin, Manual for Draft-Age Immigrants to Canada, 2nd ed., (Toronto: House of Anansi Press, January 1968), August 14 2004, http://www.radicalmiddle.com/manual.htm.

xviii Canada, “Extradition Act 1999, c. 18, 46. (1),” Mcnabb & Associates, P.S. website, August 17 2004, http://www.internationalextradition.com/canada_stat.htm.

– 20 – © 2004-5 Dave Olson, “Should US Military Service Evaders be Extradited?”


Privacy Issues in Workplace Drug Testing

Privacy Issues in Workplace Drug Testing

By Dave Olson

Originally Written for Privacy, Freedom and Security Program At Evergreen State College Spring 2004

– 1- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

The Straight Dope, an Introduction

Laws maintain that employment in the private sector is “at-will” meaning employers may fire employees whenever they choose without reason. In the public sector, workers are afforded somewhat more privacy under the Fourth Amendment prohibiting unreasonable search and seizure, and under the Fifth Amendment that protects against self-incrimination while ensuring due process. Certainly collective bargaining on the private side, and discrimination laws in both arenas mean to protect workers from undue harassment. However, due to the difficulty in determining a universally applicable standard of “what is reasonable,” especially on balance with social safety concerns, most any employee may be subjected to analysis for illicit drugs at the employer’s whim. Indeed, employers conduct about 45 million drug tests each year,i despite conflicting reports of effectiveness and degrees of privacy which vary from state to state, court to court.

While most people feel that workers in immediate control of public safety (bus drivers, airline pilots, nuclear technicians) should be sober and clear whilst working, the wide-spread of use of drug testing in non-safety sensitive vocations presents a conflict. On one hand, the possibility of advances in workplace safety and efficiency, while on the other hand, the acceptable level of intrusion into an employee’s most personal details.

To find the fulcrum in this conundrum, I seek to identify the privacy issues surrounding work-related drug testing and resultant ramifications (both positive and negative) to employers, employees and the public at large.

To do so, this report will reference noteworthy Executive Orders, Federal legislation and relevant Court rulings to address workplace drug testing as a privacy issue. Additionally, I’ll examine workplace studies to answer questions such as: What are the workplace environment advantages or disadvantages or maintaining a “drug free” workplace? What substances (legal or illegal) actually adversely affect workplace performance?

Additionally, using and relevant anecdotal and personal experiences, I’ll address practical situations which employees and employers face when drug testing actually occurs. What are procedures for actually ‘performing the test’? Who is required to submit? Who can refuse? What can happen? What can employers and employees do to mitigate the risk? What can past-employers say to inquiries about employee drug test results?

I’ll review the processes and procedures for conduct drug tests, methods to cheat tests and find the economic beneficiaries from the drug testing industry. Finally, I’ll suggest alternative solutions and strategies for achieving the same stated goals of increased workplace and public safety.

– 2- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Up To Here, The Origins of Workplace Drug Testing

Since 1986 when the Federal government began testing employees for drugs, thirty-two states have enacted varying drug testing statutes of some kind. While some states’ laws seek to protect employees from unwarranted testing, others seek to encourage employers to conduct tests. This, among other problems, causes confusion for employees and employers who operate in multiple jurisdictions.

For example, California courts determine if a test is permitted by balancing the employer’s business need against the employee’s right to privacy outlined in the state constitutionii and rule in favor of the most compelling interest. California courts also ruled that asking applicants to disclose prescription drug use prior to the test was illegal under the American with Disabilities Act. In New York, employers may not refuse to hire or fire based on use of alcohol or prescription drug use off the job.iii

Though the Supreme Court has never specifically ruled on the legality of random workplace drug testing, prior to 1986, U.S. Courts maintained a record of striking down mass drug testing programs as unreasonable searches and seizures. Particularly poignant is the 1973 ruling by the U.S. Ninth Circuit Court in U.S. v. Davis that addressed the argument that by disclosing the existence of required testing lowers the expectation of privacy. This thinking would leave public sector employees at the mercy of giving up their Constitutional rights to gain employment. The court decided that, “The government could not avoid the restrictions of the Fourth Amendment by notifying the public that all telephone lines will be tapped, or that all homes will be searched.” Additionally, the court put forth that, “If a blanket search program has little or no effectiveness, it is in substance merely a kind of harassment, a show of power, or a ‘fishing expedition’, and therefore, per se, unreasonable under the Fourth Amendment.”iv

Specifically, in Lovvorn v. City of Chattanooga, the US District Court of Tennessee ruled against the mass testing of fire fighters without individualized “reasonable suspicion” despite arguments from prosecutors that firefighters have less presumption of privacy since they live in the same quarters and use common restroom facilities. A similar conclusion was reached in a 1985 case (Odehiem v. Rutherford Regional School District) dealing with a policy requiring students to submit urine samples as a part of a routine physical. The New Jersey Supreme Court pointed out that 28 of 520 who tested positive did not represent a justifiable reason to test all students.v

In 1986, former President Ronald Reagan (b. 1911, d. 2004) signed Executive Order 12564 entitled, “Drug-free Federal Workplace.” The order which cited “billions of dollars of lost

– 3- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

productivity each year,” a concern for “the well-being of its employees,” and “profits from illegal drug use provide the single greatest source of income for organized crime, fuel violent street crime, and otherwise contribute to the breakdown of our society.” The Order ordered each Executive agency to establish drug-testing programs when there is reasonable suspicion, in the event of an accident or unsafe practice, or as part of follow-up for rehabilitation program. Though the Order also put forth that, “procedures for providing urine specimens must allow individual privacy, unless agency has reason to believe that a particular individual may alter or substitute the specimen to be provided.”vi

In 1988 during the “crack cocaine epidemic,” the 100th Congress enacted the Drug-free Workplace Act. P.L 100-690, Title V, Subtitle D of the omnibus anti-drug legislation required federal grantees and contractors to certify that they maintain a drug-free workplace with the exception of law enforcement agencies in undercover operations.vii

Requirements vary depending in type of organization administering the contract but are mostly governed internally through notices and policies. For example, individuals receiving federal contracts must sign a certification stating, “as a condition of the grant, I will engage in the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance in conducting any activity associated with the grant.”

This law created an explosive new industry for certification associations as well as a boon to the lab testing industry and trade associations for the testing labs themselves. The Drug and Alcohol Testing Industry Association’s web-site cites numerous reasons for certification from their association including, “builds self-esteem,” “offers greater professional recognition from peers,” and provides for greater earnings potential.”viii

In a 1989 case National Employee’s Union v. United States Custom Service the Supreme Court ruled that urine testing is considered search seizure under the Fourth Amendment but not necessarily a violation of such. They established the rather vague gauge of the reasonable expectation of privacy.

In 1989, the Supreme Court upheld the requirement that U.S. Customs agents who carry a gun, participate in drug interdiction operations, or handle classified materials may be tested. Justice Scalia in dissent said that testing Customs employees was an, “immolation of privacy and human dignity in symbolic opposition to drug use” and “this was a “type of search particularly destructive of privacy and offensive to personal dignity.ix”

In a 1995 case, the U.S. Supreme Court ruled that student athletes may be tested, regardless of suspicion, despite only twelve positive tests in four and a half years of blanket testing. Yet

– 4- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

in this ruling, Justice Scalia ruled that students lack many fundamental rights to self- determination and student athletes specifically have a lower expectation of privacy since they shower together and act as role models for the student body. Justice Scalia’s argument seems to ignore that all students generally shower communally in physical education classes, and role models may come from school band, chess club, drama club, or honor societies which are not obligated to test.

– 5- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Privacy Issues and Conundrums

Drug testing relies on a compliant workforce to submit to the testing. Indeed, the economic motivator is sufficient to compel most workers to test despite personal misgivings and widespread chagrin such is outlined in activist writer Abbie Hoffman’s book “Steal this Urine Test.”

Though employers maintain that “if you don’t have anything to hide, then you why do you resist” tests regularly cause casual (or causal) users to attempt to deceive tests to maintain their livelihood. This creates an industry of both drug testers (including test kit makers and laboratories and hospitals specializing in testing) as well as carpet-bagger companies marketing all sorts of snake-oil remedies for beating tests.

Indeed a look through so-called counter-culture magazines reveals an increasing assortment of sophisticated of test beaters from “guaranteed” powdered drinks to fake penises to fill with dehydrated urine (one advertises that all urine is taken from a bible study group). Additionally, anecdotal home remedies abound from loading up on the herb goldenseal and vitamins, to drinking copious amounts of white vinegar, to putting Drano crystals under fingernails to pollute the test.

Regardless of the method used to conduct or defraud the test, the fundamental privacy issues at stake remain the same and can be divided into internal issues (those to do with things inside the body) and external issues (those to do with the surrounding context of the test).

‘Internal intrusion’ issues start with the questions: What exactly are they testing for? And what else are they finding out? Examples of ethically inappropriate, but not necessarily illegal, findings could include a number of characteristics that employers may wish to avoid for a variety of reasons. This list includes: – Pregnancy (in Washington DC, the police admitted that they routinely tested all female

applicants’ urine collected for drug tests for pregnancy without knowledge or consentx); – Use addictive but legal prescription painkillers (e.g.: oxycontin), habitually abused

tranquilizers (e.g.: valium), or anti-depressant drugs (e.g.: prozac); – Details on genetic makeup (i.e.: tendencies towards illnesses that could affect health

insurance premiums).

Additionally, within this internal context, legally protected discrimination issues arise as the ADA maintains that alcoholism and drug addictions are diseases and employees cannot be discriminated if they are dealing with such an affliction.xi An example is methadone a drug commonly prescribed as a treatment drug for heroin addicts. Certainly the presence of such

– 6- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

chemical would indicate a past (or present) narcotic problem, certainly limiting a recovering addicts employment chances.

‘External intrusion’ issues begin with the embarrassment of authoritative observation of one’s ‘private’ parts which most humans (naturalists not withstanding) feel much more comfortable keeping concealed. Certainly since childhood, the personal act of urination is one performed with the door closed and in some cases can only be done in private. Medically recognized conditions such as ‘shy bladder’ syndrome, medically called paruresis, may cause an employee to be physically or psychologically unable to perform a urine test causing a violation in an employer’s policy.xii

A recent example of this situation involves an employee who was terminated after being unable to urinate, even after drinking a substantial amount of water. With the threat of termination for non-compliance with the test, the employee paid for and passed a more hair- based test (generally considered more accurate). Yet the company would not accept the result and fired the employee who is now suing for wrongful dismissal under the ADA. The company in question put forth through a spokesperson that, “We believe that our drug testing policy does not violate the Americans with Disabilities Act, and we intend to defend against the allegations.”xiii

Besides the observation is the handling of test results which may pass through many hands, including hospital and lab staff, compromising integrity and confidentiality especially in a small community. Further, results or rumors may be inappropriately distributed amongst company or industry causing damage to professional and personal reputation. Anecdotally, while in a hospital waiting room, I overheard the loud conversational voice of the receptionist check in no less than eight people coming in for pre-employment urinalysis and chatting about other people who had been in recently to test. While the employee’s intent was (likely) not malicious, one does not need to project very far to imagine such irresponsible coffee room chatter about results.

– 7- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Effectiveness of Drug Testing Programs

Results of scientific studies regarding drug testing and increased workplace safety, absenteeism and performance vary greatly. One research study lists accidents among bus drivers reduced while another shows higher drug use among employed people versus unemployed people. Other studies show increased alcohol abuse resulting from drug testing.

An article by Ellen Nakashima in the Detroit News discussing Federal employees protesting random drug tests cited a 1993-98 study by the Health and Human Services Department. Over this six-year period and 257,576 random drug tests, 1,345 people (0.52%) tested positive at cost of over thirty one million dollars (not including administrative costs), or $232,637 per positive test.xiv

As expected, different sides interpret the data differently. The agency’s workplace director purports that the program, “sends a signal to a person who is even thinking of using illegal drugs that they are putting their jobs in jeopardy.”xv

A statistician for the American Management Association points out the absence of a statistical case that screening acts a deterrent mentioning that, despite increase in random tests, rates of positive tests remain constant. As a result of this and the associated lab expenses, more employers are moving towards suspicion and accident based tests, even using undercover operatives to ferret out offenders.

The U.S. Navy boasted to a Senate subcommittee that with the advent of testing, positive results dropped from 48% to 21% over a two year period (1980-82) however the glowing proud Rear Admiral neglected to mention the corresponding increase in alcohol usexvi.

The U.S. Department of Labor puts reinforces this double standard pointing out that “Alcohol is the most widely abused drug among working adults” and is responsible for 86% of costs imposed on businesses by drug abuse. A study by the National Comorbidity Survey points out that about 9% of marijuana smokers meet the American Psychiatric Association criteria for “Substance dependence” while the figure jumps to 15% for alcohol.xvii

The argument of whether “users of illegal drugs make less productive workers” is inconclusive since topical studies are subject to faulty science, small test populations, and malleable statistics.

In a 1990 New Republic article writer John Horgan discussed J. Michael Walsh’s scientific procedures, (Walsh is the director of National Institute of Drug Abuse’s whose findings form

– 8- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

the basis of Federal drug enforcement policy). Horgan suggests that Walsh’s zero-tolerance line “doesn’t discriminate between use and abuse, between a secretary smoking marijuana on weekends and an AIDS-ridden prostitute smoking $100 worth of crack a day.”xviii

Indeed studies which lump illicit substances together as though the societal costs were equal begs the question of: What is the point behind testing at all? Walsh hints at the reasoning when he puts forth that, “I think we have reached the point where the involvement of marijuana in accidents exceeds that of alcohol.” Where is the proof in this dramatic statement Horgan asks? Walsh doesn’t have any but says, “it’s one of the things in my research program we’re trying to prove right now.”xix

– 9- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Fill the Cup – Testing Processes and Procedures

While beyond the scope of this paper to extensively detail, it is worthwhile to briefly outline the types of testing and the procedures involved in provided sample to better understand the level of intrusion associated with any kind of test and the associated risks.

The types of samples obtained for testing are: Urine – the most common and hence the least expensive, detects past use of drugs but not current intoxication; Blood – can detect current intoxication but not past use, drawing blood is uncomfortable for may people and requires training to handle draw and handle sample; Hair – newer technology which proponents suggest is most accurate and can be read like timeline, others argue the test is bias against dark-haired people and inaccurate for marijuana use; Saliva and sweat patch – least sensitive and can only measure for a few hours after use.xx

Specifically addressing urinalysis, depending on the stringentness of the tests, the routine varies in the degree of invasiveness. In general, the testee is obliged to pee in a controlled area under some degree of observation. In some cases, the tester watches the actual genitalia, in others cases, the merely stands next to, or a stall and monitors for unusual behavior.

In some cases, the testee changes into a hospital gown to prevent concealment of a bladder (a technique detailed in Hoffman’s aforementioned book) while in other situations, testees are simply patted. In most all cases the subject must vigorously wash hands and arms and remove wristwatch to prevent fouling the tests with a foreign substance. The toilet bowl is usually colored with a dye agent to prevent the testee from watering down the sample. In other cases, an empty pail is used to catch excess sample urine.

When labs use proper care and sophisticated tests, false positives are increasing rare. This however is not always the case as drug test kits are available for purchase by anyone at prices starting at about ten dollars (incidentally some online brokers sell both the drug kits and drug test cheat kits). In these instances, a variety of substances can trigger false positives.

“Even a 99% accurate test produces one false positive result out of 100 people tested. Given that more that 30 million Americans were tested last year, this means 300,000 false results were delivered!”xxi

– 10 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

In addition to substance related false positives, numerous human means of human error can create an unscientific result. Potential human errors include mislabeling, mixing up samples, tampering, mixed up paperwork, unclean sample jars and improper lab work.

The professional (read: expensive) routine is to first use an “immunoassay test” and confirm positive results with a more accurate “gas chromatograph mass spectrometer test” measuring metabolites.xxii Advanced labs will also use “split samples” allowing an extra portion to retest if results are inconclusive or contested. An employee may want to request a split sample to be re-tested by another lab depending on result.

In less accurate tests, false positive are obtained with otherwise benign substances like poppy seeds (heroin), hemp oil products and over-the-counter drugs like ibuprofen (marijuana), cold remedies and allergy medication (amphetamines). Plus, numerous prescription drugs (which you may be requested to disclose beforehand) may cause interaction with the tests. Various medicated shampoos (for dandruff) have produced false positives in hair tests.

It is worth noting the confusion over which are ‘bad drugs, e.g.: medical marijuana is recognized in thirteen states yet not on a Federal level preventing an established prescription routine. Drug test timeframes vary by drug – i.e.: alcohol (hours), meth-amphetamine & cocaine (days) marijuana (weeks), LSD (years) creating an uneven playing field. Showing ironically, substances with high risk of habitual abuse often stay in system for a shorter period than those with less habit-forming characteristics.

– 11 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Drug Testing Situations and Scenarios

To test or not to test, that is the question. While companies have the legal ability to institute a drug-testing program, before doing so, the company should clearly define what the ‘big picture’ of testing is. In other words, what is the company trying to prevent or produce by instituting a drug testing policy?

Many companies rely on outside contractors and labs to administrate and enact policies however a policy customized to the needs and culture of the company is a worthy consideration.

Some of the reasons a company may wish to institute a program include:

• Creates a public marketplace impression of being a ‘clean’ workplace; • Ability to discover medical data beyond drug use about employees or applicants; • Deters habitual users who would otherwise apply because other companies are testing; • Qualify for Federal contracts by being a ‘certified clean workplace’; • Appeases shareholders’ who think drug testing is the industry norm and protects assets; • May reduce on job injuries and workplace accidents; • May reduce absenteeism and/or increase efficiency; • Way to ‘weed out’ undesirable workers by singling out for testing; • May reduce overall group medical insurance costs; • Limits liability in event of accident of illegal behavior.

Notable reasons for companies not to test include:

• Expensive to test all applicants (the higher the quality the test, the more expensive); • Lose out on creative and ‘libertarian-minded’ workers who use soft drugs casually; • Doesn’t eliminate alcohol use/abuse on or off the job (most abused drug in the

workplace); • Doesn’t address tobacco use (largest drain on medical insurance costs); • May create contentious relationship with workers if the policy is non-reciprocal or

penalized differently compared with managers; • False sense of security (workplace efficiency and safety not necessarily reduced); • Risk of unlawful dismissal lawsuits – even when settled, may be expensive and distracting

to fight.

– 12 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Any company deciding to institute a drug testing policy should establish a specific policy reflecting the goals of the individual company’s program and prepare contingencies for positive tests and challenges.

In brief, the policy should address:

1) 2) 3) 4) 5) 6) 7) 8)

9) 10)

Are the workplace safety reasons compelling enough to warrant testing? Are there collective bargaining agreement related issues with union workers? Who will be tested and under what circumstances? How does the company change the policy or make exceptions or exemptions (if any)? What substances will be tested for and what are the reasons for testing for each? Who will administrate the program and who will supervise the program administrator? What lab will perform the tests and what are their accreditations and exact procedures? What processes will be triggered in the event of a “positive” test? (i.e.: second test with split sample to a different lab; suspension with/out pay; counseling/treatment option) What are the employee grievance and dispute resolution procedures? Who will counsel the company in the event of a challenge or legal proceeding?

In general, situations in which drug tests are administered can be divided into three categories: Pre-employment, Random on-going and Incident (on demand) testing.

Pre-Employment Testing

While drug testing is (at least to some degree) intrusive to one’s privacy, most job seekers are resigned to offering bodily fluids and agree to the testing for personal chemicals in the hopes of employment but without any guarantee of wage compensation.

Because (as mentioned earlier) hiring an employee is an “at-will” decision by an employer, companies may obligate most any kind of testing by voluntary job applicants. Since a majority of employers require pre-employment drug screening, prudent workers must understand the ramifications and processes of testing.

Besides the physical intrusion of being watched as you pee, the applicant’s employment chances are also dependent on somewhat faulty science. Because of the expense of drug tests, pre-employment tests tend to be of a lower quality and more susceptible to false positives. This could result in bad news for someone who unwittingly uses a legal product, which is an indicator of illegal drug use.

– 13 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

A responsible (and ethical) company choosing to test applicants should advertise the policy to prospective employees, including details of the test and results of a ‘dirty’ test.

The applicant, in most cases, does not receive the results of the test, as the employer owns the results of the employee’s chemistry. However, with these results, and the applicant’s blanket approval, the employer can find out all manner of information about a potential employee.

Aside from totally abstaining from any illegal drug use and/or abstaining long enough for any trace of illegal drugs to leave the body system, applicants who do not wish to submit to a pre- employment drug screening test have a scant few options, though none well-suited to securing employment.

1) Choose not to do the test and take their labor elsewhere; 2) Choose to not test and suggest working as a freelance or contractor.

Option two is increasingly common, particularly in the high-tech industry where capable programmers and specialized technicians are increasing valuable and such employees are generally not in a position to affect co-workers’ safety. Two recent examples using this approach suggest there are ways to protect one’s privacy while successfully gaining work.

In both cases, after successfully completing the application and interview process, the applicants were offered jobs, one as an Internet technician for a telecommunications company,xxiii and another with an international microchip manufacturer.xxiv The employment offers were contingent on a passing a urine analysis drug test. In both cases, the applicants declined the test at the risk of losing the job offer because they recreationally used cannabis.

As for resolution, the microchip manufacturer offered the applicant the same work but to be performed as a contract worker (incidentally at a higher hourly rate and with more independence).

In the instance of the Telecommunications Company, the applicant spoke honestly with the employer and told that he smoked marijuana and he would not smoke at work. The employer was understanding and arranged for the applicant to work through a third-party temporary- staffing agency in order to circumvent their blanket policy of screening all new hires.

Both employees are still working under these auspices however this scenario is not ultimately desirable in all situations since employee may not enjoy the same insurance coverage and other benefits as drug test compliant employees.

– 14 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Random Testing Employers may conduct random testing with minimal recourse with established policy. Such a policy should outlines the terms of randomness including who is included in the ‘testing pool’. A random drug testing policy may be a successful deterrent to drug use by employees and is commonly used to such an end. A fair program should include all employees including management to foster a cooperative attitude to the testing program. Indeed random testing forms the basis of many programs including the military, commercial transportation operators covered by the Omnibus Act and professional or amateur athletes.

Anecdotal findings show that a “modified random” program is sometimes chosen to weight the test somewhat. In this scenario, employees may know a ballpark date range in which they are likely to be tested, or in some cases, they are told weeks in advance allowing time to ‘clean up’ if needed. In a similar vein, an employee’s name may be removed from the list after being chosen once or twice over a certain period of time.

In most cases though, the employee is notified at work and instructed to proceed directly to a lab for testing. In an anecdotal situation, a professional scuba diver was radio-ed in to shore from a vessel in the harbor to take a test. He went to the test in wearing his wetsuit, which incidentally kept a concealed condom of clean urine (at an appropriate temperature) which he obtained from his girlfriend.xxv

If you choose to submit to testing and wish to pass despite use of illicit drugs, other last resort options include:

1) 2) 3)

Prepare to ‘cheat’ the test using one of many and “cross your fingers”; Declare use of several false positive indicators to make the test inconclusive: Use the “second hand smoke” or “unwitting ingestion” defense.

Incident-based Testing Employer’s drug testing policy may request a test after an accident or based on ‘suspicious activity’ but test are the most legally volatile with the greatest risk of repercussions to both sides. To prevent costly civil lawsuits, must balance employee’s reasonable expectation of privacy vs. compelling safety reasons. Additionally, such tests are often based subjective observations and/or unknown accusers who may have a personal agenda for implicating someone for testing. With this in mind, tests requested due to specific incidents should be approached with extreme care.

– 15 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

First, the employee should carefully the company’s review policy to see if the incident qualifies under the guidelines. Document all events surrounding the incident for the record and determine if there is a reasonable remedy in the established policy.

Second, if ‘dirty’ test results may result in significant punitive measures (i.e.: loss of job, negligence lawsuit), the employee should consult an attorney or union representative for advice and advocacy. Competent advice will ensure full knowledge of the possible ramifications from any test outcome allowing for clear decision making.

Third, if the company’s chosen lab’s procedures are unclear, or the lab offers any reason to doubt their strident professionalism, the employee should request either a split sample to be tested elsewhere or purchase their own test at another lab facility. This will allow the employee to mount a more strident defense in the face of faulty lab work.

An example of an incident based testing occurred when an Internet marketing executive was summoned to a Vice-president’s office for a hastily called meeting with a Human Resources director.xxvi In the meeting, the employee was informed of “accusations from the community” that the employee was smoking marijuana at a company sponsored golf tournament three months previous. Despite recent commendations for exceptional work, and five-plus years of work, the employee was instructed to take a drug test or face termination as per the company policy.

The employee took the lab paperwork and requested administrative leave to review the situation. After reviewing the company’s policy for aberrations and consulting an attorney, the employee refused to take the test. In a letter written to the Vice-president, the employee cited policy-based reasons for refusing the test.

Specifically the reasons cited were: 1) The policy included drugs and alcohol yet complimentary beer and liquor was widely

available (and encouraged) at the event; 2) The policy stated that only employees needing access to secure and sensitive areas

needed to be tested yet this employee had no such access; 3) There had been no vehicle accident or workplace injury which would have required a test,

and; 4) The results of the test would not prove or disprove the allegations of marijuana use three

months prior.

After reviewing the matter with corporate counsel, the company did not terminate the employee. However, the company but cast assumption guilt in stating, “Your refusal creates a

– 16 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

concern for us that the allegation is in fact true.” The company also offered dependency counseling and reminded the employee of the employer’s right to terminate without reason at any time. The employer also saw fit to include the reprimand in the employee’s permanent record. While irritating, the contents of such a record could in no circumstances be revealed to anyone outside of the company, particularly to another future employer verifying past employment or inquiring about workplace performance.

In a similar example that resulted in a firing and subsequent lawsuit, a manager alleged an employee as appearing to be “acting unlike herself.” He said she was slumping, avoiding eye contact, slurring speech, and possibly suffering from “female problems.” She was asked if she was under the influence of alcohol or prescription drugs. When she denied such use, the manager sent her to go take a UA at a lab over an hour drive away. She refused (stating she had never sued drugs in her life) and was fired. In court, she refuted the manger’s account of events and contended an ulterior motive was involved (based on her protesting an overtime policy at a recent staff meeting). She prevailed in her suit for invasion of privacy and wrongful termination in violation of public policy as the drug test was judged to be pre-textual rather than based on objective individual suspicion.xxvii

– 17 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Moving Forward – Conclusions and Strategies

After reviewing the numerous issues and considering alternatives, I offer a few harm reduction points strategies to consider for both employees and employers.

First, drug use in general is not going to go away. Thus, accurate scientific distinctions should be made between drugs less harmful drugs from more harmful substances (i.e. marijuana vs. meth-amphetamine). Further, a scientific distinction needs to be made between “use” and “abuse.”

Second, society should be so lucky to have chronic drug abusers seeking work rather than relying on crime, and draining criminal justice systems and social welfare programs. Effectively barring them from work through testing further marginalizes addicts.

Third, honesty and disclosure is a better policy for fostering a safe and clean workplace. If employees can reveal off-work drug habits without risk of termination so such employees can be placed in non-safety sensitive jobs. Employees should be judged by observation of workplace aptitude and performance and fired if inadequate.

Fourth, if studies can show that drug users are medially more expensive, employees can be offered incentives to test clean rather than punishment for testing dirty (i.e. reduced health insurance premiums).

Fifth, when testing is desirous in a workplace, employers should exercise utmost care and study to introduce a policy which respects employees privacy by outlining terms and objectives of the test including sharing the results and offering alternative solutions besides firing such as counseling, treatment and reassignment.

– 18 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Endnotes

i “Lawsuit Claims Shy Bladder Got Man Fired” Associated Press. Cited from CNN.com May 20, 2004. ii “Understanding the Laws of Drug Testing” Jane Howard-Martin / USA Today 12/19/02, Referenced from

http://usatoday.com on 4/20/2004. iii “Keeping it Legal is the Key to Success” – Buddy T. from About.com Alcoholism and Substance Abuse

section.

iv U.S. v. Davis, 1973 Cited from “Drug Testing at Work: A guide for Employers and Employees” Beverly Potter and J. Sebastian Orfali, 1990.

v “A Look At The Historical Legal Basis For Urine Testing” Paul Armentano, Donna Shea, 3/19/03. Referenced from National Organization Reform Marijuana Laws www.norml.org 4/20/04.

vi U.S. National Archives & Records Administration – “Executive Order 12564 – Drug-free Federal Workplace” Ronald Reagan Sept. 15, 1996. Cited from www.arhives.gov.

vii “Section D – Drug Free Workplace Act of 1988” Laws of 100th Congress – 2nd Session, Nov. 18 1988. viii “DATIA’s Stamp of Approval: Top Ten Reasons to Seek Certification” Drug and Alcohol Testing Industry

Association website. www.datia.org. ix “Urine – or You’re Out” Jacob Sullum 11/02, Reason online http://reason.com/0211/fe.js.urine.shtml

4/20/2004. x “Workplace Drug Testing” ACLU brochure in Privacy in America series.

xi “Keeping it Legal is the Key to Success” – Buddy T. from About.com, Alcoholism and Substance Abuse section.

xii “Lawsuit Claims Shy Bladder Got Man Fired” Associated Press. Cited from CNN.com May 20, 2004.

xiii “Lawsuit Claims Shy Bladder Got Man Fired” Associated Press. Linda Fairbanks, spokesperson for “Caterpillar” cited from CNN.com May 20, 2004.

xiv Health and Human Services department data from fiscal 1993-98. Cited from “Government Employees Protest Drug Testing Policy” by Ellen Nakashima, The Detroit News, June 2, 2001.

xv Robert Stephenson, Director of the Division on Workplace Programs, Health and Human Services’ Center for Substance Abuse Prevention. Cited from “Government Employees Protest Drug Testing Policy” by Ellen Nakashima, The Detroit News, June 2, 2001.

xvi “Drug Testing at Work: A guide for Employers and Employees” Beverly Potter and J. Sebastian Orfali, 1990.

xvii “Urine – or You’re Out” Jacob Sullum 11/02, Reason online http://reason.com/0211/fe.js.urine.shtml referenced 4/20/2004.

xviii “Your Analysis is Faulty (How to lie with drug statistics)” John Horgan, New Republic 4/2/90. Referenced from The National Organization for the Reform of Marijuana Laws (NORML) www.norml.org 4/20/04.

xix “Your Analysis is Faulty (How to lie with drug statistics)” John Horgan, New Republic 4/2/90. Referenced from The National Organization for the Reform of Marijuana Laws (NORML) www.norml.org 4/20/04.

xx “Feds To Overhaul Employee Drug Testing Standards” News article from NORML.org, 1/15/2004. xxi “Policy Paper on Workplace Drug Testing” by the Marijuana Reform Party of New York, 2/7/03.

– 19 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

xxii “Dealing With Urinalysis on Short Notice” California NORML Publication; updated 03/97, Referenced from NORML www.norml.org 4/20/04.

xxiii Dave Olson personal experience regarding David T. in Olympia, WA USA 2004.

xxiv Dave Olson personal experience regarding Keith Y. in Olympia, WA USA 2004.

xxv Dave Olson personal experience regarding Eugene M. in Guam, Micronesia USA 1994.

xxvi Dave Olson personal experience and letters regarding self in Olympia, WA and Advanced TelCom Group of Santa Rosa CA in 2000. Thanks to Attorney Ken Friedman of Tacoma, WA.

xxvii “Employee wins for firing after refusing drug test” 7/1997 Article from www.FairMeasures.com, referenced on April 20, 2004.

Other Bibliographical notes

• • • •

Advertisements for commercial drug testing products and products designed to thwart drug tests Courttv.com, Legal Café Q&A on Employee privacy rights Drug-free workplace manifest from www.ncsu.edu Various company’s drug testing policies

– 20 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing


Military service evaders seeking justice – Laying it all out on paper

You likely know i’ve been working on a series for Postcard from Gravelly Beach podcast about war and peace called “White Poppies for Remembrance” recorded last November.
Poetry on war and peace and remembrance

The most recent episode “Buddhas in the Trenches” discusses conscientious objection and military service evaders.  I wrote a “Pro” and “Con” argument paper while at Evergreen College in Olympia, WA in the early days of this ‘war on abstract nouns’  which (unfortunately) is still vitally relevant.

The essay titled Should U.S. military evaders be extradited? Yes & No arguments (.pdf) 08/04” break down the issues and conundrums facing the (growing number of) men and women who are giving their humanity and conscience priority over their military service obligations/commitments.

Rather than rambling on, … please note the endnotes for both sides of the argument.  I encourage people to learn more about what is going on as decent people fight for refugee status and their right to not-kill and be killed for an illegal, immoral and unethical war.  The situation is vastly different than Vietnam era (no more draft and extradition treaties are in place) but eerily similar (particularly as the war continues to escalate out of control).

This essay is available along with many others at…