Last week Governor Paul LePage announced his intent to finally enforce a three-year-old law that requires drug tests to be conducted on convicted drug felons who apply for Temporary Assistance for Needy Families (TANF). The law was originally passed as a compromise between Republicans and Democrats in LePage's 2011 budget, but has never been enforced. So now, in order for it to take effect, the Department of Health and Human Services must first develop rules, which it is now proposing. In a written statement, the governor said that drug testing is necessary to ensure that tax dollars don't support addictions.

"If someone tests positive for drugs, they are clearly putting their addiction ahead of their family's needs," said Governor LePage. "Being drug-free is a critical aspect of moving away from poverty and toward self-sufficiency. We must do all that we can to ensure children's needs are being met and that the TANF recipient has the best possible chance at economic independence."

TANF is a federal cash benefit program to assist low-income families with dependent children. In Maine, 68 percent of TANF recipients are children and 78 percent of adults receiving the benefit are women, many of whom are single mothers. According to DHHS, 7,119 households in Maine receive TANF, which includes 11,588 children. TANF is usually used for basic needs like rent and utilities that are not covered by other programs like Supplemental Nutrition Assistance (i.e.: "food stamps").

In a recent radio interview on the George Hale and Rick Tyler Show on WVOM, LePage went as far as to say that any welfare recipients with drug felonies who get caught using drugs and do not go to rehab should have their kids taken away by the state.

"They just don't care for their kids," said LePage. "If we're bending over backward to get them into rehab, and they don't want to go into rehab, what kind of environment are they giving their children?"

Under the proposed rule change, felons testing positive for drugs can request a retest, but if they test positive a second time, they must enroll in an approved substance-abuse program or face losing financial support for their families. Those who do not disclose in their applications that they have been convicted of a drug felony would automatically have their TANF benefits terminated. The governor's initial plan was to ban all drug felons from receiving TANF regardless of whether they test positive or seek treatment. Democrats insisted on including the drug-treatment option in the final version of the budget.

Democratic leaders dismissed the governor's announcement as another reelection campaign tactic to distract voters from Maine's lousy economic climate.

"This law has been on the books for years, yet LePage hasn't enforced it," said Democratic House Speaker Mark Eves, who helped negotiate the 2011 drug-testing compromise. "We need leaders who are serious about solving problems and enforcing the law, not simply scoring political points in an election year at a time when Maine's economy is lagging."

So far this summer, the governor has dominated the campaign discourse by announcing a series of welfare reform initiatives. Last month, the LePage administration enacted photo ID requirements for Electronic Benefit Transfer (EBT) cards and has also proposed a minimum 20-hour-a-week work requirement for "able-bodied" people receiving SNAP benefits (even college students) as well as a ban on general assistance for undocumented immigrants, many of whom are seeking legal asylum from war-torn countries. Both of LePage's opponents, Democrat Mike Michaud and Independent Eliot Cutler, say they support the drug-testing law.

Shaky Constitutional Ground

According to the National Conference of State Legislatures (NCSL), in 2011 at least 36 states introduced bills that would require drug screening for applicants seeking public assistance, and 18 states introduced similar measures in 2014.

But although the federal "welfare reform" law of 1996 permits states to include drug-testing requirements for TANF recipients, courts have ruled random drug testing to be unconstitutional. Last year a federal district court struck down Florida's 2011 law mandating random or "suspicionless" drug testing for TANF recipients, calling the policy a violation of the 4th Amendment's prohibition on unreasonable search and seizures.
However, DHHS Commissioner Mary Mayhew has insisted that Maine's law is well within Constitutional bounds.

"Our rules are drafted according to the knowledge we have gained over the last several months. As a result, our drug-testing program is based on best practices and aligns with federal law,' said Mayhew in a written statement.

A public hearing for the new rule will likely be held this fall. Under Maine's Administrative Procedures Act, Democratic Attorney General Janet Mills must sign off on the rule change to determine its legality. According to the AG's spokesman, the office has yet to receive it.

Cost Concerns and Privacy Rights

Meanwhile, some conservatives are expressing concerns about the cost to implement the policy.

Rep. Lance Harvell (R-Farmington), a critic of welfare programs, says the rule will require the state to spend more money on counseling for TANF recipients caught using relatively less serious drugs like marijuana. Since THC, the psychoactive chemical in marijuana, is fat soluble, it remains detectable in a urine test several weeks after it is consumed. While Maine has taken steps toward decriminalizing marijuana use in recent years, it is still classified as an illegal drug. However, TANF recipients won't face any punishment for consuming vast amounts of legal drugs, like alcohol.

"I can understand where they're going with this. We don't want taxpayer money to end up buying drugs," said Harvell. "But the reality is that given the costs of drug testing and counseling, I honestly think it would cost a lot less if we just legalized marijuana."

Experiences in other states like Tennessee, Florida and Utah have backed up Harvell's cost concerns. According to the Tennessean, of the six people who were tested out of 812 TANF applicants who were screened last month in Tennessee, only one failed the test. The AP reported that after Utah spent over $30,000 on its drug-testing program for welfare applicants in 2012, only 12 people tested positive for drugs. In Florida, The Tampa Tribune reported that in 2011 only 2 percent of welfare recipients failed drug tests, which cost the state $30 a pop.

But the governor's latest initiative is not so much about saving money or lifting poor families out of addiction and poverty as it is about continuing the "War on Drugs," which notoriously targets low-income populations. As the American Civil Liberties Union notes, individuals caught with even one tablet of the prescription painkillers oxycodone or hydrocodone can be charged with a drug felony in Maine. Alison Beyea, executive director of the ACLU, also pointed out that these invasive drug-screening measures can retain DNA information and other sensitive medical data about an individual.

"Policies like this one treat some people like they have fewer privacy rights simply because they have trouble making ends meet," said Beyea in a statement. "The last time I checked, the Fourth Amendment applies to everybody."

And LePage's contention that a positive test result reveals that TANF recipients are "clearly putting their addiction ahead of their family's needs" conveys a strikingly ignorant view of how addiction works.

In the July 24 issue of The Free Press, 36-year-old single mother "Danica" recalled years of struggling with poverty, domestic violence, cancer, incarceration, homelessness and opiate addiction. After an addiction relapse from painkillers prescribed after her cancer surgery, Danica is finally in drug counseling and off opiates. She is taking college classes with a goal toward a degree. However, under the proposed rule change, she could be one relapse away from losing financial support for her 9-year-old son. She does still smoke medical marijuana long after the cancer treatments have ended, so a positive test result for THC would also pull the rug out from under her family.

Under Governor LePage's current policies of slashing the financial safety net for the poor, less coverage for drug treatment, and more incarceration for nonviolent drug offenders, many more low-income people who struggle with addiction will most certainly end up in jail or prison. It's a vicious cycle that University of California, Irvine, criminology professor Elliott Currie says has led to the US having the highest incarceration rate in the world. Representing only 5 percent of the world, the US currently houses 25 percent of the world's prisoners.

"Prison has become our first line of defense against the consequences of social policies that have brought increasing deprivation and demoralization to growing numbers of children, families and communities," wrote Currie in his 1998 book "Crime and Punishment in America."

But for demagoguing politicians with no vision for a more fair and just society, policies that criminalize and scapegoat the poor often prove to be a vote getter.