A Massachusetts judge has ordered the state prison system to stop using drug field tests with well-known reliability issues after incarcerated people and their lawyers claimed they were falsely accused of smuggling drugs for exchanging legitimate legal mail.
In July, several Massachusetts inmates and attorneys, represented by Justice Catalyst Law and the law firm BraunHagey & Borden, filed a class action lawsuit alleging that the state Department of Corrections (DOC) uses NARK II test kits to detect synthetic cannabinoids even though those tests have an error rate so high that they're akin to "witchcraft, phrenology or simply picking a number out of a hat."
On Tuesday, Suffolk Superior Court Judge Brian Davis issued a preliminary injunction enjoining the DOC from punishing inmates based solely on the results of unverified NARK II field tests. Davis found that the tests were "highly unreliable" and "only marginally better than a coin-flip." He ruled that the DOC's practice of placing inmates in solitary confinement and restricting access to their lawyers before those field tests were verified by outside labs "constitutes an arbitrary and unlawful interference with Plaintiffs' right to counsel, as well as their right to due process."
As Reason reported earlier this year, such drug field test kits are manufactured by several different companies and are used by police departments and prison systems across the country, despite hundreds of documented wrongful arrests and clear instructions from the manufacturers that the tests should be verified by crime labs. The federal Bureau of Prisons, for instance, uses such tests to put incarcerated people in solitary confinement and strip them of good behavior credits and visitation privileges, all without ever sending the test to outside labs for confirmation.
The test kits use instant color reactions to indicate the presence of certain compounds found in illegal drugs, but those same compounds are also found in dozens of known licit substances. An Atlanta woman was recently jailed for nearly six months after sand inside a stress ball in her purse allegedly tested positive for cocaine. Last year in Georgia, a college football quarterback was arrested after bird poop on his car tested positive for cocaine.
The lawsuit followed claims by more than a dozen Massachusetts attorneys who said they were falsely accused of sending drugs to their incarcerated clients. (One way synthetic cannabinoids are smuggled into prisons is by lacing paper with the drug, which has led prison systems to crack down on outside mail and donated books.) Those clients were then put in solitary confinement for receiving legitimate legal mail.
Criminal defense attorney Lisa Newman-Polk, also a plaintiff in the lawsuit, told WBUR that one of her clients was moved to a restrictive housing unit, lost his prison job, and couldn't begin an education program after privileged legal mail she sent him tested "positive" for K2. A crime lab later invalidated those results.
Perusing the mostly unchallenged assertions in the lawsuit, the judge concluded that the plaintiffs "have alleged, with substantial evidentiary support, that the NARK Il Test, even when used properly, returns an extremely high rate of false positive test results."
According to exhibits filed in the lawsuit, at least 122 items that the DOC reported positive for synthetic cannabinoids using the NARK Il test between July 2019 and March 2021 proved to not contain any illicit substances after confirmatory lab tests. A smaller sample of positive field test results between August 2019 and August 2020 showed that those results were accurate only 62 percent of the time.
"The overwhelming evidence before this Court is that the NARK II Test, by itself, is a highly unreliable means of determining whether a particular mail item actually contains any illicit synthetic cannabinoids," Davis' order found. "The best information offered is that the NARK Il Test returns false positive results approximately thirty-eight percent of the time, which is only marginally better than a coin-flip, and exponentially worse than the false positive rate that DOC itself has indicated is acceptable."
In a statement, BraunHagey & Borden attorney Ellen Leonida says the judge's order "vindicates the rights of incarcerated people in Massachusetts to communicate with their attorneys without the threat of arbitrary punishment."
"Faced with 'overwhelming evidence' of this test's unreliability, the court ordered the DOC to do what they should have done from the beginning: stop arbitrarily punishing people for simply trying to receive mail from their lawyers," Leonida continues.
The problems with these tests have led at least one other state prison system to stop using them. Last summer, the New York Department of Corrections and Community Services suspended use of NARK II test kits for contraband.
But the same types of tests are used in the federal prison system, where results are not sent to outside labs for verification and inmates have no legal recourse to request independent verification.
Sirchie, the company that manufactures the NARK II tests, claims that any problems are the fault of the DOC misusing its products. In a motion to dismiss a related federal lawsuit against it, Sirchie notes the clear warnings on its website:
"ALL TEST RESULTS MUST BE CONFIRMED BY AN APPROVED ANALYTICAL LABORATORY! The results of this test are merely presumptive. NARK® only tests for the possible presence of certain chemical compounds. Reactions may occur with, and such compounds can be found in, both legal and illegal products."