ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, January 7, 1996 TAG: 9601090014
SECTION: VIRGINIA PAGE: B1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
President Clinton wants people arrested by federal agents to start providing more than just their fingerprints and mug shots. He wants them to hand over urine samples.
The president signed an executive order Dec. 18 instructing Attorney General Janet Reno to develop a policy to ask all federal arrestees to submit to a urine test, from white-collar criminals to poachers on the Blue Ridge Parkway. If they decline, prosecutors could ask a judge to deny them bond.
Clinton also asked Reno to encourage state governments to adopt similar policies for people arrested on state charges.
Robert Crouch, U.S. attorney for the Western District of Virginia, said his office is awaiting direction from the Justice Department on how to implement the policy in Roanoke and other federal courts in the district.
"There is a direct link between drug use and crime - both because people commit crimes under the influence of drugs and because they commit crimes to sustain their drug use," a White House news release said. "Through this directive, the president will take action to ensure that the criminal justice system will accurately and speedily identify the users of drugs."
But the president of the National Association of Criminal Defense Lawyers called Clinton's new policy "Orwellian."
"Next, they'll want to stop us all on the street and order us to urinate into bottles," said Robert Fogelnest, an attorney in New York. "U.S. attorneys have no right to make your willingness to take a drug test a condition of release or an issue at a bail hearing."
A criminal suspect is presumed innocent until convicted and, under the Eighth Amendment, has a right to be free pending trial. Exceptions are allowed if a judge finds that someone is a danger to society or at risk of fleeing before trial. Fogelnest and other critics of Clinton's order said there are only so many conditions that can be put on such release.
There may be practical problems with enforcing the order as well.
U.S. Magistrate Glen Conrad, an official who handles most bond hearings in Roanoke federal court, said a drug test before bond is set could require that new tests be created, since bond hearings must be held within 48 hours of an arrest. Drug tests ordered now are administered after a suspect is released on bond and are sent off to California, requiring more than 48 hours to get results.
Already, nearly all defendants in drug cases - the majority of criminal cases in federal court - are required to pass regular urine tests to stay out on bond.
Conrad has yet to see the executive order, but said he feels more bound by Supreme Court decisions, including a 1994 ruling that drug testing is an invasion of privacy for people with no drug history. The court ruled that a district judge should not have ordered urine tests for a robbery suspect because there was no indication the crime was drug related. Before that ruling, Conrad said, drug tests had been a standard condition of release requested for everyone.
By stating that such tests would be voluntary, Clinton's executive order hopes to avoid legal conflict.
Kent Willis, executive director of the Virginia chapter of the American Civil Liberties Union, questions whether being asked to submit to a urine test while under arrest is truly voluntary - especially with the threat of no bond hanging over someone's head.
"It's an unconscionable squeeze he's put people into," Willis said of the president's order. "At no point should a drug test be required of someone who is not arrested on a drug-related charge, period. That is an invasion of privacy. Our argument is, it would not be voluntary even if it appears to be so."
Although he said he's concerned with the privacy issue for people arrested on charges other than drugs, Conrad said someone's refusal to submit to testing would influence him. He said it would be a factor in his decision whether to give them bond - not just as an indicator of drug use, but as a sign they might not be cooperative.
"It seems to me, when someone is arrested, they would want to be very agreeable and cooperative if they want to be released," Conrad said.
How the executive order will be implemented is still unclear. Clinton gave Reno 90 days to devise a policy and inform U.S. attorneys.
Buddy Ross, the supervising U.S. probation officer in Roanoke, said his office - which handles pre-trial supervision of federal defendants - would not be bound by an executive order because it operates under the judiciary, a separate branch of government.
Probation officers determine before each bond hearing whether a defendant is considered dangerous or a flight risk; they usually recommend that the judge order drug testing when someone is arrested on a drug charge, Ross said.
Probation officers "are paid and trained ... to identify people likely to be at risk of that and request court-ordered testing," he said. "I just don't see the need to require a blanket directive. It seems a little overkill."
Ross' office oversees 300 to 400 people in the Western District who have been charged with felony and serious misdemeanor charges. Urine tests cost an average of $8.63 a sample, he said. The Western District processes about 2,000 samples a year.
Willis said the test of the executive order will be whether judges agree to go along with it.
"Clinton's been clever enough to couch this in voluntary terms and make it only an executive order" and not law, he said. "Therefore, it gives wiggle room to judges and prosecutors who don't want to follow this."
Fogelnest calls it simple political posturing.
"I suspect this is a reaction to some staffer reminding him that he hasn't renewed his 'war on drugs' credentials lately."
LENGTH: Long : 102 linesby CNB