More Prosecutors Refuse To Accept Guilty Pleas Based On Faulty $2 Field Drug Tests

from the at-long-last,-some-forward-momentum dept

Thanks to ProPublica's research -- and a high-profile article in the New York Times -- prosecutors in Oregon will no longer accept guilty pleas based solely on the results of often-inaccurate field drug tests.

Last July, shortly after ProPublica and The New York Times Magazine published an article detailing that the kits are prone to error and years earlier had helped account for roughly 300 wrongful convictions in Houston, the Multnomah County District Attorney’s Office in Portland decided to change the way it secured guilty pleas in drug possession cases. Today, when a defendant pleads guilty before the lab analysis is performed, prosecutors must still have the field test results double-checked.

J. Russell Ratto, the head of conviction integrity at the district attorney’s office, had asked his colleagues whether it might be wise to change the policy after the article’s publication.

“Our DDAs [deputy district attorneys] are always looking to make sure we’re using the very best practices,” said J.R. Ujifusa, the deputy district attorney who oversees drug prosecutions.

It's a good start. The $2 drug tests are great for law enforcement drug warriors, but not much good for anyone else. The cheap tests, performed in the field by officers, have been known to call everything from baking soda to donut glaze illegal substances. This is often good enough for government work, especially when the government work involves obtaining convictions.

Harris County, Texas -- where the 300 wrongful convictions were uncovered -- is also no longer accepting pleas based on field test results. But that only solves part of the problem. The other problem is what to do with those accused of drug possession. Treating the tests as fallible helps prevent wrongful convictions, but those facing drug charges remain locked up while waiting for lab test results.

Thomas Johnson of Fault Lines points out that the Portland DA's office has its head and heart in the right place, but it won't do much for people picked up by cops utilizing $2 field drug tests, not until the rest of the system is overhauled.

You have to give up what the court orders for bail. You can post a percentage of the bail, but it’s the judge who decides the bail amount. This bail amount can vary depending on the type of drug you’re suspected of possessing and your past record. For instance, if you have a violent incident on your record, it will increase the bail for your new charge. The same goes for a previous drug conviction.

Oregon doesn't allow independent bail bondsmen so the bond must be paid directly to the state. Ten percent of the bail is the usual security amount, but even that percentage can be unaffordable.

Bail can vary from the $10,000 on a charge of unlawful meth possession, for example, to $75,000 for someone accused of sex abuse.

If someone can't come up with $1,000, they're stuck in jail while awaiting lab results. They can't plead guilty but they can't be proven innocent either. They're in limbo -- the sort of limbo that can ruin someone's life before they even have a chance to be exonerated.

As of 2015, the goal at the state crime lab was to have evidence tested within 30 days, but the average turnaround was 65 days. For many defendants, if you can’t afford bail, you are already living hand to mouth and 65 days in jail will effectively finish you off. You’ll be starting from scratch once you hit the street.

Fault Line's Johnson suggests another solution: if the DA's office is conceding that these drug tests are often inaccurate, it should follow this assumption to its logical conclusion and work on changing this part of the system as well. If it's really interested in not ruining people's lives over a $2 drug test, it needs to push for greatly-reduced bail or no bail at all in cases where the only evidence at the time of booking is subject to a mandatory second pass.


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  • icon
    Chris-Mouse (profile), 12 Dec 2016 @ 3:52am

    But if they can't use those cheap tests to get automatic convictions, how are they ever going to keep the for-profit prison system profitable?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Dec 2016 @ 7:08am

      Re:

      One can only hope that they can't.

      reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 12 Dec 2016 @ 8:38am

      Re:

      One popular way is through debtors' prisons. America made them illegal in the 1830s but they've made a big comeback. They've also been raiding country jails for inmates, "lobbying" state officials to have those inmates transferred to for-profit prisons to keep the numbers up.

      Or was that one of those "rhetorical questions" people keep telling me about?

      reply to this | link to this | view in chronology ]

    • icon
      ShadowNinja (profile), 12 Dec 2016 @ 10:28am

      Re:

      No no, the for-profit prison system will be making more money then ever!

      They'll just need to expand into more expensive drug test companies (where those after the biggest profits will fake 'profitable' results of course)!

      Problem solved, justice is still sold to the highest bidder like before, and everyone lives happily ever after.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Dec 2016 @ 4:49am

    Why does it take a news story at the national level before these ass clowns decide they had better do their frickin jobs?

    Apparently, corruption can not stand the light of day in a healthy society, not sure where we are headed but it will not be what is considered a healthy society.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 13 Dec 2016 @ 5:59am

      Re:

      "Money-first" with selfishness as a virtue was always going to end in tears. Try "community first" with altruism as a virtue.

      In a money-first society corruption thrives; in a community-first society it's got nowhere to hide. The only way I can think of to get there is to drop the partisanship that's tearing your society apart and look for things you have in common. Then you can campaign against corruption. The whole point of partisanship is to prevent the people from working together. Getting rid of it will enable you to work together. Then you'll have the healthy society you crave.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 12 Dec 2016 @ 5:01am

    "Today, when a defendant pleads guilty before the lab analysis is performed, prosecutors must still have the field test results double-checked."

    Gee, perhaps they should demand that these tests be independently reviewed for accuracy before spending another $2 on them.

    We have a shitty tool, but we are unwilling to accept it is shitty. We will still use this untested 'witness' to the crime & after the fact make sure it told the truth.

    How is this not violating a citizens rights to unreasonable search and seizure? We keep a flawed test out there, so we can bust people at will, and then gather evidence based on the flawed results & then bolster those results after the fact.

    This must be the same magic that says the software they drives breathalyzers & deciding if they are likely to re-offend can not be audited by anyone, even when it is shown they were wrong.

    If we are supposed to have faith in the system, perhaps the system needs to stop protecting broken things. Just like a court must consider if the eye witness is an addict who cut a deal to testify to lower charges they faced might not be reliable, shitty tests should not lead to someone facing charges & their life upended. Perhaps if the state had to pay out of their budgets a $25,000 fee to anyone facing charges based on a flawed test they might decide to demand better field tests rather than continuing to use the shitty tests as a pretense to find a way to screw the target after the fact.

    reply to this | link to this | view in chronology ]

  • icon
    Groaker (profile), 12 Dec 2016 @ 6:18am

    This is a start, but even with laboratory based testing, there is little assurance of a correct result. There is often significant pressure from the police for a "positive." Sink testing is all too frequent. Some laboratory staff like to play god with other peoples lives. Forensic testing is often slipshod, and does not provide proper quality assurance such as double blind testing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Dec 2016 @ 7:43am

    So the Government are Pro-Abortion, which is really murder. All about control of your own body, and yet DRUGS are Illegal, and you're only doing it to yourself and your own Body. I really don't see the difference from drugs to Alcohol other then one has a better lobbying group over the other.

    This whole so called WAR ON DRUGS has been failing. If anything it's done more harm then good. Let drugs be legal, most all of the crime related to it goes away. Do gangs hang out on corners selling alcohol? No! Legalize it! Tax it! People are either going to use it or not. I rarely drink Alcohol and yet I can buy whatever I want and drink away.

    Lets leave jails to real criminals!!!

    reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 12 Dec 2016 @ 12:46pm

    They can't plead guilty but they can't be proven innocent either.

    And this, right here is where we have a problem. The normal rule of law is "innocent until proven guilty", not "jailed until proven innocent". This last one should be a rare exception for well defined cases.

    reply to this | link to this | view in chronology ]

  • identicon
    CharlieBrown, 12 Dec 2016 @ 3:34pm

    Australia

    These hints are now mandatory in Australia with the TV commercial stating "Random drug driving tests. There is no escape." I saw that commercial last week.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Dec 2016 @ 5:43pm

      Re: Australia

      The difference being that if you return a positive drug or alcohol test, you are retested immediately using a proper, calibrated machine to confirm it. And if it's a drug test, there are also lab samples.

      People are not held in jail for weeks or months while they get samples analysed.

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 12 Dec 2016 @ 3:55pm

    Sue them

    I'd sue them for lost wages, since they knowingly used faulty testing.

    reply to this | link to this | view in chronology ]


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