Washington State Prison System Sued for Using Unreliable Drug Tests To Put Inmates in Solitary

Reason reported in 2021 how prisons use cheap field kits to test mail for contraband—and use the faulty, unconfirmed results to severely punish inmates.

Another state prison system is facing a lawsuit over its use of inaccurate drug field tests to throw incarcerated people in solitary confinement.

The class-action lawsuit, filed last Friday by Columbia Legal Services in a Washington state circuit court, alleges that the Washington State Department of Corrections (DOC) uses unreliable field kits to test mail for drugs and then uses the unverified results to put inmates in solitary confinement, move them to higher security prisons, and strip them of visitation rights and other privileges. This violates inmates' due process rights and protections against cruel punishment under the state constitution, the suit argues.

"DOC continues to use these tests even though, upon information and belief, items that have tested 'presumptive positive' include blank notebook paper and manila envelopes purchased directly from DOC's commissary or from DOC-approved vendors," the suit says.

According to the lawsuit, one of the plaintiffs spent four months in solitary confinement after greeting cards shipped directly to him from a card company tested positive for drugs. The results were later invalidated by a lab. Another plaintiff, Gregory Hyde, was kept in solitary confinement—meaning he was in a cell for 23 hours a day—for nearly five months because some books of crossword and sudoku puzzles that his father mailed him tested positive for synthetic marijuana, also known as "spice," a popular drug in prisons.

"I think DOC is using its power to punish people who can't fight back," Hyde said in a press release. "My elderly father just wanted to send me some puzzle books. Now they're saying he's a drug dealer. Now my father is too far away to see because I got transferred to a different facility. My father is impoverished and on a fixed income. I think it's an abuse of power."

The lawsuit comes roughly two years after a Massachusetts judge ordered that state prison system to stop using similar field tests, finding that they were "highly unreliable" and "only marginally better than a coin-flip." That suit followed claims by over a dozen Massachusetts attorneys who said they were falsely accused of sending drugs to their incarcerated clients.

Reason reported in 2021 on how these cheap field tests, which use instant color reactions to indicate the presence of compounds found in certain drugs, are used extensively in prison systems across the country to punish inmates, despite clear warnings from the manufacturers that the results should be confirmed by outside labs. 

The problem is that the compounds these kits test for are not exclusive to illicit drugs and are in fact found in dozens of legal substances. Police also use these tests during traffic stops, and over the years, officers have arrested and jailed innocent people after drug field kits returned presumptive positive results when tested on bird poop, donut glaze, cotton candy, and sand from inside a stress ball. A 2017 investigation by a Georgia news station found that one brand of test kit produced 145 false positives in the state in one year.

The issues with these tests have led at least one other state prison system to voluntarily stop using them. In 2020, the New York Department of Corrections and Community Supervision suspended the use of NARK II test kits for contraband. 

In criminal cases, the results of drug field tests are always verified by an outside lab. However, incarcerated people have far fewer rights in administrative disciplinary hearings, and they don't have the right to demand that "presumptive positive" tests be sent out for confirmation.

The lawsuit says the DOC agreed to change its policies after receiving Columbia Legal Service's threat of litigation. However, Columbia Legal Services says the changes weren't adequate to protect incarcerated people's rights.

"DOC's repeated and prolonged use of solitary confinement before and after any infraction hearings is inhumane," Alison Bilow, an attorney for Columbia Legal Services, said in the press release. "Prolonged solitary confinement is internationally recognized as a form of torture. DOC must be required to stop its use of these cheap tests to unfairly punish people, especially with its barbaric use of solitary confinement." 

The Washington State Department of Corrections declined to comment on the lawsuit, citing the pending litigation.