A Comprehensive History of U.S. Drug Testing Part I

The Slippery Slope

There was a time not long ago when the idea of the government compelling any American citizen to take a random suspicionless drug test was unthinkable. Pre-employment drug screens by a private employer do not challenge the Constitution – if you don’t want to take a drug test you are free to market your labor elsewhere – but drug testing public employees was different. Opponents of public-sector drug testing point to the Fourth Amendment to the United States Constitution as a likely place to begin their objections:

“The Right of the People to Be Secure in Their Persons, Houses,

Papers and Effects Against Unreasonable Searches and Seizures,

Shall Not be Violated; And No Warrant Shall Issue, but upon Probable

Cause, Supported by Oath or Affirmation, and Particularly Describing

the Place to Be Searched and the Person or Things to Be Seized.”

Requiring a citizen to drop their pants and present clean urine on demand is a search within the meaning of the Fourth Amendment, and absent a warrant, a random suspicionless drug test certainly seems to be at odds with constitutional guarantees. That was the prevailing view in 1969 when Harvard-educated psychiatrist Dr. Robert DuPont working for the Washington, D.C. Department of Corrections decided to drug test 129 prisoners to demonstrate a connection between drugs and crime. That action did not draw the fire of the Fourth Amendment because prisoners, by definition, have mitigated rights. The test subjects locked up in the nation’s Capitol already had their freedom foreclosed, and it seemed to be no great stretch to require them to provide a little urine on demand as well. Certainly, no one complained.

Dr. DuPont claimed that 44% of the prisoners tested positive for heroin, a figure that was almost certainly something else given the enduring flaws of early urinalysis;  but imprecision aside, the larger points remained:  his research demonstrated a strong correlation between hard drugs and crime, and the small cohort of prisoners under Dr. DuPont’s microscope seemed to do well with an experimental methadone maintenance program. His work caught the attention of Egil “Bud” Krogh, the White House liaison to the District of Columbia. Krogh had recently come to Washington by way of John Ehrlichman’s Seattle-based law firm. He was just six months out of law school when he was tapped to become deputy assistant for domestic affairs to the President of the United States – Ehrlichman’s aide, really – and was given the unenviable task to make good on a campaign promise and clean up crime in the District of Columbia.

“Get on that, Bud,” the president jowled during his first meeting with Krogh, “Cut crime in the District.”

Krogh wrote a note on his yellow legal pad, “Cut Crime In District”. That was the embryonic moment when modern drug war began.

After trying a few gadfly reforms that didn’t much work (more cops, more streetlights) Krogh alighted upon DuPont’s impressive results at the Department of Corrections and, in February 1970, he approved a program to bring methadone maintenance to the D.C. streets. Over the next three years, the Narcotics Treatment Administration (NTA) treated more than 15,000 heroin users at twenty treatment centers located in all parts of the city with a staff of more than 400.  Some researchers believed that methadone was the “magic bullet” to reduce drug abuse and crime; others found good reason to believe that methadone maintenance simply replaces one addictive opioid with another, exchanges the street dealer for a drug counselor and is a racially charged, politically toxic bad idea that creates as many problems as it solves. Whichever view applies, a year after the methadone clinics opened in D.C., burglaries in the district dropped 41 percent. By turning bad junkies into good junkies, DuPont and Krogh had cut crime in the District as the President warranted but also laid the twin foundations for drug rehab and drug testing, a pair of persistent industries that lay just beyond the horizon. DuPont would be the first to cash in.

When Krogh was told to reduce crime nationwide before the 1972 election, the young can-do counsel came back with an ambitious plan. He endorsed a multi-modal rehab approach authored by Dr. Jerome Jaffe of the Illinois Drug Abuse Program (IDAP) that included counseling and detoxification but was really anchored in a national methadone maintenance program. To increase enforcement Krogh attached a memo written by a zealous special assistant at the Treasury Department, a former assistant D.A. from Duchess County, New York, who wanted to create a small secret police unit within the White House with extraordinary powers of search and surveillance to combat the scourge of heroin. However, the toxic symbolism of white people distributing an addictive opiate to black people throughout American ghettos was rejected at the highest levels of the Nixon Administration and, at that moment at least, Krogh’s extralegal secret police squad was taken as a bad idea.

Soldiers came next. In August 1970, amid persistent rumors of drug abuse among U.S. service personnel in Vietnam, National Security Advisor Henry Kissinger sent baby-faced Bud Krogh on a four-day fact-finding mission to Southeast Asia. The envoy visited over a dozen firebases from the demilitarized zone at the center of the severed nation to Bạc Liêu far to the south, and everywhere he went he saw plenty of red-eyed soldiers smoking world-class weed and was offered hard drugs by a grunt who mistook him for one of their own.

“I’m from the White House,” a guileless Krogh explained. “I was wondering if it’s easy to get drugs here?”

“Really? Well, I’m from Mars,” the soldier smiled weakly. “What do you want?”

Back in Washington, Bud was summoned to the Oval Office.

“Mr. President, you don’t have a drug problem,” he suggested. “You have a condition.” Krogh advised his screw-faced chief to “more conspicuously associate” with a war against narcotics. He suggested the Commander In Chief order his generals to conceal the true extent of G.I. drug use from visiting congressional delegations and especially from the press. The problem, he suggested,  was “created by unlimited disclosure of sensitive, embarrassing information to hostile Congressional types.” The President listened but took no immediate action.

So Krogh looked like a prophet in the spring of ’71 when Congressmen Robert Steele (R-CT) and Morgan Murphy (D-IL) returned from Vietnam with a devastating report that publicly claimed up to 15% percent of returning soldiers were addicted to hard drugs. Time magazine ran a cover showing an American army helmet impaled by a syringe. Krogh urged the President to ask Congress to fund a major public offensive against drug abuse and coordinate those efforts through a single office that the White House could control. This time the President listened.

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