I have a guest column in the Rapid City Journal this AM on HB1076

Just on the Internet and in today’s paper this AM, I have a guest column in the a Rapid a City Journal this morning on why House Bill 1076 violates conservative principles, as well as American principles:

HB 1076 presumes applicants for such benefits are guilty, until bodily fluids are provided to prove innocence — and tested at the applicants’ own expense. That stands against one of the most basic principles of criminal justice, the presumption of innocence, which has been recognized for nearly 1,500 years.

As a proponent of limited government this measure troubles me greatly as a dangerous overreach of the authority of the state. Adding more bureaucracy for the purposes of government drug testing citizens of the state en masse and establishing the precedent that it is an acceptable thing to do so, is not a good thing for democracy.

With HB 1076, the state will be testing a significant portion of the nearly 7,000 TANF recipients and roughly 100,000 South Dakota residents who receive SNAP benefits. Ignoring the obvious concerns of expense, mass-testing tens of thousands of South Dakotans to prove them innocent also has a lot of other problems, particularly with the U.S. Constitution.

Read it all here.

9 thoughts on “I have a guest column in the Rapid City Journal this AM on HB1076

  1. Anonymous

    –As a proponent of limited government this measure troubles me greatly as a dangerous overreach of the authority of the state.

    But the fact that taxpayer-funded programs like TANF and SNAP don’t trouble you?

    If the principle is “limited government”, shouldn’t the simple existence of these programs be the proper subject of debate, rather than assuring that some ancient, but inapplicable, principle be respected? Without that discussion, the claim to be a proponent of “limited government” becomes suspect.

    –That stands against one of the most basic principles of criminal justice, the presumption of innocence, which has been recognized for nearly 1,500 years.

    Another principle of criminal justice is being judged by a jury of one’s peers, but that’s 100% irrelevant to a discussion on civil matters like whether one is entitled to government benefits. The proposed drug testing of TANF recipients is NOT being used to charge or try anyone for criminal drug possession. Invoking “innocent until proven guilty” is simply another hysterical distraction that has nothing to do with entitlements…and demonstrates a basic lack of understanding of the differences between administrative law and criminal law. Mentioning “innocent until proven guilty” in the context of this bill is akin to screaming about a 1500 year old “right to free speech” being violated by Kory Heidleberger on his blog. It’s 100% inapplicable..

    I suppose we should be thankful that the hysterics over drug testing grandma in the nursing home and school children in wheel chairs have been discarded.

    In the end then, this is not about TANF or “innocent until proven guilty–it’s a lame attempt to loudly proclaim the compassion and care and concern of those opposing the bill…without having to actually engage in the hard and persistent work of alleviating poverty and hunger and suffering that no gov’t welfare program can truly address (and that anyone claiming to be for limited gov’t would address BEFORE addressing this bill) . Loud words against this bill are meant to somehow inoculate one from the further criticism for not being a compassionate conservative. The only thing worse than being a hypocrite is being a lazy hypocrite who has plenty of words but won’t even bother to rise from the recliner to act otherwise.

    Other commenters here have discussed the underlying causes that lead to the symptoms meant to be addressed by TANF and such programs, some of them moral issues. Proponents of limited gov’t, true compassion, and real conservatives prefer to spend their time SOLVING the underlying causes, not just supporting programs like TANF that only serve to address the symptoms, and in too many cases, exacerbate those symptoms to the exclusion of solving the causes. This bill attempts to uncover those causes and address them.

  2. bret clanton

    PP your blog is infinitely more interesting to read when you are writing things on your own rather than copying and pasting Republican agendas….

  3. Troy Jones

    View #1 articulated above: “The proposed drug testing of TANF recipients is NOT being used to charge or try anyone for criminal drug possession.” Thus invoking this violates the principle of “innocent until proven guilty.”

    This is true under a strict application of the concepts as according to the law. Innocence and guilty are specific legal terms and this bill does not violate that principle on its face. Further, in civil matters employers, individuals and the government can invoke consequences to behavior that are use “criminal violations” as standards without one being formally found guilty. For instance, you can be fired for violating drug laws by failing a drug test.

    View #2 (articulated by Pat): This bill “presumes applicants for such benefits are guilty, until bodily fluids are provided to prove innocence — and tested at the applicants’ own expense.” which violates “the presumption of innocence.”

    This is true if you use “innocence” outside of the strict interpretation. The TANF applicant has to pay a fee to prove they aren’t a drug user. The bill requires no indication the applicant might be a drug user. It must be proven to get benefits.

    The principle of this bill is the same principle behind background checks to buy a gun (need verification the prospective gun buyer isn’t a criminal). However, the difference between gun buyer applicants (and background check) and TANF applicants (drug test) is gun buyer applicants don’t have to pay a fee for the background check.

    My point: Is it appropriate to charge TANF applicants a “verification fee” when we don’t charge gun buyer applicants?

    1. Anonymous

      Interesting how a question on two largely unrelated topics is left undeleted, but so be it.

      The legal answer is, yes.

      Weapons regulations are subject to the right of self-defense found in the second amendment.

      There is no “right” to TANF or any other welfare benefit, so the burden and the level of scrutiny is not the same. The federal l gov’t or the state gov’t or both could simply defund and deactivate every & any welfare program that it wanted for whatever reason (or no reason) without violating anyone’s constitutional right, since there is no constitutional right to welfare. With weapons under the second amendment, the burden is on the gov’t (state or federal) to demonstrate that its regulation of that right is narrowly tailored to meet the legitimate gov’t goal, and that no other less restrictive means of accomplishing that goal available.

      However, once gov’t does decide to offer & fund welfare programs like TANF, applicants are “entitled” to certain procedural safeguards under the Admin. Procedures Act (SD has a similar APA) . In particular, that the govt action is not arbitrary and capricious, an abuse of discretion, or otherwise violating the law-the burden being on the applicant/recipient to substantiate that the govt action falls in one of those categories. The APA & SD APA allows for minimal due process protections such as access to documents, access to subpoenaed witnesses, cross-examining witnesses, but not a full blown civil or criminal trial by any means. Judicial review is permitted as a final resort. In sum, “innocent until proven guilty” has absolutely NO RELEVANCE to this process.

      Most (all?) states that have enacted drug testing for TANF, have utilized a screening regimen to identity those who are likely to be addicted or have addictive tendencies before requesting a drug test. Utah’s experience has been that a small number have taken the test and failed, OR have simply dropped out of the application process. Utah has programs available to those who failed the TANF drug test and wish to seek treatment. In any case, Utah has spent $30,000 and has saved $350,000 in its TANF drug testing program. ($350,000 AND counting since the “temporary” TANF benefits can go for 5 years!).

      Comparing the regulation of RIGHTS and regulation of TANF benefits–or analyzing them in similar ways–is largely inapropos.

  4. Anonymous

    Those applying for unemployment benefits are expected to prove that they are actively seeking a job, AND pay for that search and for travelling to interviews.

    Those applying for a drivers license are expect to prove that they can see, hear, drive, and know the rules of the road–all at their own expense.

    If the objections outlined in this newspaper article are valid, why are those seeking unemployment benefit and drivers licenses treated as “guilty until proven innocent” (1500 years of justice!)? They must prove their eligibility, and do so at their own expense? 1500 years of justice violated I tell ya!!!

    According to the “logic” provided in this article, folks are entitled to unemployment benefits and a drivers license without question or testing unless “convicted” of failing to look for a job or a conviction for violating the rules of the road.

    Sounds ludicrous, right?

    The fact is, is that “innocent until proven guilty” is utter nonsense when it comes to applying and receiving gov’t “entitlements”.

    Now, we can argue about the wisdom and efficacy of this bill, but “innocent until proven guilty” has nothing to do with that debate (neither did previous dire warnings about pee testing demented grandma at the nursing home or throwing autistic kids into homelessness when they failed a drug test–we’re making progress!)

    1. Anonymous

      You think dementia is something to joke about? You think watching someone you love slowly lose interest in activities they once enjoyed is funny? You think losing the ability to know something is wrong with your body internally but not being able to decide they need to tell someone something is wrong and it turns out to be cancer and it’s too late to treat is hilarious? Ha ha ha!? You are an ugly, malevolent person, inside and out.

  5. Outside the Box Thinker

    If the goal is to reduce fraudlent dependence of social welfare benefit programs, drug testing is not going to make a dent. In fact, the the perceived savings will be dwarfed by the financial cost of mandatory prosecution of these individual for failed urinalysis.

    If your urine contains any controlled drug to include non-prescribed prescription pills, meth, cocaine etc. under state law you have felony possession. These cases will be prosecuted by local state’s attorney’s and defended by local public defenders. These offices are already over burdened with cases and the prosecution/defense costs typically are in the thousands of dollars on even on the most simple narcotics violation cases.

    My suggestion is public service in exchange for benefits. If a person is required to donate 16 hours per month in exchange for benefits this will benefit the taxpayer and reduce the enrollment of the program. Those persons that truly need the benefit will show up and pick up trash, weed wack reflector poles on the interstate, stuff envelopes, or assist with any other project the state deems necessary. Those persons that are too lazy to show up, and that number would bear out, will be kicked out of the program immediately. It is a win win for the taxpayer either way. Win, our ditches are clean and we receive something in exchange for the benefit i.e. no free ride. Win they do not show up for public service and we save money by not paying out the benefit.

    The alternative is to give them benefits, they fail the urinalysis, the taxpayer spends even more money on prosecution and defense costs and we still receive nothing in exchange for the benefit.

    Anyone that has worked in the welfare arena for more than five months will tell you that you cannot embarrass a fraudster or lazy person off welfare. The only way you kick these type of folks off welfare is by making it a personal burden or inconvenience to be on welfare (public service). They will take themselves off the welfare program’s intentionally or by default by not showin up.

    It is time to start using creative solutions. Drug testing is not the answer.

  6. Anonymous

    –In fact, the the perceived savings will be dwarfed by the financial cost of mandatory prosecution of these individual for failed urinalysis

    Utah has experienced ACTUAL savings. I encourage you to sudy up on this topic before postign again.

    –If your urine contains any controlled drug to include non-prescribed prescription pills, meth, cocaine etc. under state law you have felony possession. These cases will be prosecuted by local state’s attorney’s and defended by local public defenders.

    1. There have been 0 cases of welfare recipients who have been prosecuted for possession of illicit substances based on a urine test.

    2. NO state allows a charge (thus conviction) for criminal possession of illicit drugs based on a urine test alone. NONE!

    If we’re going to discuss this bill tjpp, how about we stop tossing these hysterical, baseless, and ludicrous claims around? Is this faux hysteria simply to boost one’s alternatives as the “reasonable solution”??

    –Anyone that has worked in the welfare arena for more than five months will tell you that you cannot embarrass a fraudster or lazy person off welfare

    Its easy to see that you have no experience with the TANF program or its recipients. Your outrageous stereotyping lacks compassion, understanding, and is totally unchristian.

    For example, in Utah, several TANF applicants simply walked away from the application process once informed that they would be drug tested.

    You’re making crap up as you go, OBT or whoever.

    1. Anonymous

      –2. NO state allows a charge (thus conviction) for criminal possession of illicit drugs based on a urine test alone. NONE

      Correction: the charge may be allowed, but any conviction for drug possession based on a urine test alone will not stand.