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Earlier this month, both The New York Times and The Marshall Project ran excellent stories on how roadside field tests for drugs can return false positives that send innocent people to jail or even cause them to plead guilty when they did not possess drugs. The articles, “How a $2 Roadside Drug Test Sends Innocent People to Jail” and “Jolly Ranchers, Sage and Breath Mints,” respectively, highlight alarming uses of field tests in Florida and Texas, where people were charged, held for months, or even convicted based on unreliable field tests alone. Following these stories, criminal justice reform advocates have been raising alarms around the country about the use of field-testing and its possible negative impact.

As is often the case in the criminal legal system, however, the causes of the horror stories captured by The New York Times (NYT) and The Marshall Project (TMP) articles are considerably more complex than simple reliance on drug field-testing—and actually much more deeply rooted in the basic structure of our criminal justice system. Rather than supporting an oversimplified pushback against drug field-testing as a whole, we as reform advocates must identify the precise ways in which field-testing could work to protect or trample defendants’ rights when used in different ways across jurisdictions. Equally as important, we cannot sacrifice scrutiny of the underlying structures in which field-testing operates, which are truly the cause of these terrible outcomes.

 

A Brief Introduction to Drug Field-testing in Illinois

In contrast to what one may expect, Chicago Appleseed has actually been a proponent of drug field-testing. We advocated for the creation of the Cook County Pilot Drug Field-Testing Program precisely because field-testing in this context shortens the time people are held in jail without confirmation that they possessed actual drugs. In Cook County, it was already possible (without any drug field-testing) for someone to be held in jail on a drug charge for more than three weeks before the substance found was confirmed to be an illegal drug. Before the initiation of the Field-Testing Program, defendants had to wait until their preliminary hearing to discover that the full drug analysis report from the Illinois State Police crime lab showed no drugs were present. Illinois also has one of the longest statutory maximums in the country for holding preliminary hearings. Nearly all other states require a preliminary hearing 10 or 14 days after arrest, but Illinois permits a 30 day wait in jail. In 2013, 6,116 people were held in jail for three to four weeks on drug charges only to have their cases dismissed at their preliminary hearings. The Field-Testing Program now facilitates the holding of preliminary hearings within 7 days of bond court instead of the previous average of 24 days—allowing the 27% of drug defendants whose cases are at that stage dismissed to exit the jail and court system much faster than without field-testing. Furthermore, the Illinois State Police lab confirmation test is still returned within the original 30 day timeframe, preventing any harm from false positives should they occur.

 

Now, here are some of the bigger reasons why a $2 roadside drug test was able to send innocent people to jail:

 

Unreliable Tests and Inadequate Training Result in False Positives

Much of TMP’s article focuses on the unreliable nature of certain field tests, including “the NARK II tests, which cost between $15 and $20 for a box of ten.” One Hillsborough County, Florida police lieutenant “found that just opening the test bag to the air produced the same shade of purple as exposure to methamphetamine.” Such egregiously unreliable tests are an easy fix when more reliable tests are readily available. As in other areas of criminal justice policy, field-testing procedures cannot allow cost savings to take priority over defendants’ rights. This is a problem that is easily remedied.

Field Testing under the Cook County Pilot Program is extremely reliable because care was taken to select high quality field-testing equipment. The narcotics testing device used (XCat Narcotics, Gunshot Residue and Explosives Detection System) has a 99.8% accuracy rate. In fact, in eight months of operation, the Cook County Pilot Field-Testing Program has produced zero false positives. Results on the XCAT are also clearly displayed by a positive or negative indicator light rather than through easily misunderstood color codes. Rather than being conducted on the side of the road, field tests are done in the pilot police district’s stationhouse. This also means that substances are being tested after an arrest has taken place, rather than as part of a decision whether or not to make an arrest.

The NYT article highlights a second story also from Hillsborough County, in which “sheriff’s deputies produced 15 false positives for methamphetamine in the first seven months of 2014.” Upon closer inspection, the NYT found that the Sheriff’s department’s own records “showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.” As with all policing protocols, drug field-testing is subject to misuse as a result of poor training, inadequate supervision, and lack of systemic oversight. If adopted, field-testing must be implemented with robust training and accompanied by frequent and thorough oversight mechanisms.

 

Harsh Sentences and the “Trial Tax” Force Innocent People to Plead Guilty

“How a $2 Roadside Drug Test Sends Innocent People to Jail” profiles Amy Albritton, a woman arrested based on a false positive roadside test and scared into taking a plea deal the very next day. “Albritton recalls [her public defender, Mr. Richardson] explaining that this was a felony, and the maximum penalty was two years in state prison. … [T]he prosecutor had already offered a deal for much less than two years. If she pleaded guilty, she would receive a 45-day sentence in the county jail, and most likely serve only half that. … She could spend a few weeks in jail or two years in prison. In despair, Albritton agreed to the deal.”

While the false positive of the field test was clearly a factor in Ms. Albritton’s decision to take a plea, the larger context in which that plea was offered and accepted must not escape scrutiny. The penalties for fighting a case, including pretrial detention, retracted plea offers, and harsher sentences at trial make taking a plea deal an appealing (and rational) choice even when no field-test results are involved. Of course, our incredibly harsh sentences for drug possession, increased consistently over the last 30 years, create the background for these coerced pleas. Without the threat of a long sentence for exercising her rights, Ms. Albritton may have made a different decision about whether or not to plead based on the faulty field-test result. For more discussion of why innocent people accept plea deals, see federal judge Jed Rakoff’s excellent 2014 article, “Why Innocent People Plead Guilty.”

 

Under-resourced or Ill-trained Defense Counsel Fail to Challenge Bad Tests

During discussion of the plea offer, “Albritton told [Mr. Richardson] that the police were mistaken; she was innocent. But Richardson, she says, was unswayed. The police had found crack in her car. The test proved it.” Mr. Richardson was Ms. Albritton’s court-appointed attorney. In 2010, Harris County (where Ms. Albritton’s case was processed) relied primarily on contracted attorneys who received flat fees for handling cases, creating a financial incentive for attorneys to dispose of cases as quickly as possible. (See The Fair Defense Report: Analysis of Indigent Defense Practices in Texas [PDF here] by Texas Appleseed, pages 19-20.) While many things may have gone wrong in Richardson’s defense of Ms. Albritton, a properly resourced and trained criminal defense attorney should be aware of the high false positive rate of field tests used in their jurisdictions and be prepared to challenge their use in prosecutions on that basis. Properly resourced public defender offices with strong leadership could also challenge the use of highly unreliable tests more generally on a public policy level.

Harris County did not, in fact, establish a public defender’s office until 2011, the year after Ms. Albritton was arrested. A subsequent 2013 evaluation of indigent defense in Harris County [PDF here] by the Council of State Governments Justice Center found that the public defender’s office improved indigent criminal defense in the county three concrete ways: “(1) better defense case outcomes than assigned counsel; (2) previously unavailable defense services such as training, mentoring, and advice; and, (3) defense participation in discussion of systemic issues.” Of course, all three of those improvements would have worked in various ways to reduce the likelihood that an unreliable field test factored into Ms. Albritton’s ultimate decision to take a plea deal. The same report also found that public defenders were more likely than appointed counsel to get weak felony cases dismissed, rather than to plead them down, and were also far more likely to take cases to trial than appointed counsel.

 

Pretrial Detention Coerces Pleas

As is well documented, pretrial detention increases the likelihood that a defendant will be convicted and also increases the length of any sentence imposed [PDF here]. A 2016 study of misdemeanor defendants in Harris County found that detained defendants were 25% more likely to plead guilty than comparable defendants who were released pretrial. The NYT article includes the startling fact that “All of the 212 [false positive] defendants struck plea bargains, and nearly all of them, 93 percent, received a jail or prison sentence. … Perhaps most striking: A majority of those defendants, 58 percent, pleaded guilty at the first opportunity, during their arraignment; the median time between arrest and plea was four days.” Those statistics require little interpretation: the impact of pretrial incarceration is so strong that it forces even innocent people to plead guilty, and to do so quickly.

Again, it is important to separate field-testing as a general practice from the harmful or coercive systems in which it may operate. In Chicago, as described above, the implementation of field-testing has worked to dramatically reduce the time that defendants are held pre-trial (if at all) and to avoid detention when no drugs are present. False positives from field-testing kits thus create no new risk of harm in Cook County, particularly because a case will not proceed without a full lab analysis. Such confirmation testing from a reliable lab was not the case in the jurisdictions profiled in the NYT and TMP stories. Coupled with a renewed push to release people pretrial pending their preliminary hearings, field-testing in Cook County is resulting in fewer days spent in the jail.

 

Overburdened Criminal Systems Cannot Test Suspected Drugs with Reasonable Speed

A final issue touched on in the NYT article is the simple capacity to test substances suspected of being drugs in a timely and effective manner. Houston’s crime lab is profiled for the sort of “evidentiary triage” its staff are able to perform as they take in “far more samples than they could competently analyze.” Substances used to convict people thus waited years on shelves before being tested. Regardless of whether a jurisdiction uses field-testing or not, reliable confirmation testing by a competent lab should undergird every presentation of drug evidence against a defendant in order to protect the defendant’s right to due process.

 

In Conclusion

Drug policy remains in need of major reform, both in Illinois specifically and in the United States generally. While isolated practices or poorly vetted products are occasionally to blame for unjust outcomes in criminal cases, more frequently they are merely part of a larger system working together to cause an undesirable result on a much larger scale. Improved kits and procedures for field-testing, as well as better pretrial procedures and treatment for substance abuse, are part of the reform process.

With each implemented reform, systems stakeholders and community advocates must ask themselves whether the goals of decarceration, decreased recidivism, increased fairness, and decreased racial disparities are being advanced. For our part, Chicago Appleseed and our community partners will work to ensure field-testing in Illinois has the intended impact of lessening the time people spend in Cook County Jail through careful and thorough evaluation of our Drug Field-Testing Pilot Program.