Ryan Gabrielson and Topher Sanders, How a $2 Roadside Drug Test Sends Innocent People to Jail. ProPublica and The New York Times Magazine, 7 July 2016. “This story was co-published with The New York Times Magazine…. Tens of thousands of people every year are sent to jail based on the results of a $2 roadside drug test. Widespread evidence shows that these tests routinely produce false positives. Why are police departments and prosecutors still using them?”
Update, August 2016: Sidney Awards, Ryan Gabrielson and Topher Sanders Win August Sidney for Exposing Faulty Roadside Drug Tests that Send Innocent People to Jail.
“Ryan Gabrielson and Topher Sanders of ProPublica win the August Sidney for “Busted: How $2 Roadside Drug Tests Send Innocent People to Jail.”
“The story, co-published with the New York Times Magazine, found that faulty roadside drug tests send thousands of people to jail every year. These tests are so unreliable that they are inadmissible in court, yet motorists plead guilty based on tests that can be tripped false positive by dozens of common, legal chemicals, including household cleaners.
A false positive test for crack cocaine turned Amy Albritton’s life upside down. The 43-year-old property manager had no criminal record until a particle on the floor of her car falsely tested positive for crack cocaine. Follow-up tests pegged the substance as food debris, possibly a breadcrumb.
There’s no way to know how many wrongful convictions arise from false roadside results, but as Gabrielson noted in an interview with the Backstory, “even the smallest of false positive rates would produce hundreds annually.””
Police officers arrest more than 1.2 million people a year in the United States on charges of illegal drug possession….
The field tests seem simple, but a lot can go wrong. Some tests, including the one the Houston police officers used to analyze the crumb on the floor of Albritton’s car, use a single tube of a chemical called cobalt thiocyanate, which turns blue when it is exposed to cocaine. But cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners. Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question — but if the officer breaks the tubes in the wrong order, that, too, can invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street — flashing police lights, sun glare, street lamps — often prevents officers from making the fine distinctions that could make the difference between an arrest and a release.
There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positives for methamphetamine in the first seven months of 2014. When we examined the department’s records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.
No central agency regulates the manufacture or sale of the tests, and no comprehensive records are kept about their use. In the late 1960s, crime labs outfitted investigators with mobile chemistry sets, including small plastic test tubes and bottles of chemical reagents that reacted with certain drugs by changing colors, more or less on the same principle as a home pregnancy test. But the reagents contained strong acids that leaked and burned the investigators. In 1973, the same year that Richard Nixon formally established the Drug Enforcement Administration, declaring “an all-out global war on the drug menace,” a pair of California inventors patented a “disposable comparison detector kit.” It was far simpler, just a glass vial or vials inside a plastic pouch. Open the pouch, add the compound to be tested, seal the pouch, break open the vials and watch the colors change. The field tests, convenient and imbued with an aura of scientific infallibility, were ordered by police departments across the country. In a 1974 study, however, the National Bureau of Standards warned that the kits “should not be used as sole evidence for the identification of a narcotic or drug of abuse.” Police officers were not chemists, and chemists themselves had long ago stopped relying on color tests, preferring more reliable mass spectrographs. By 1978, the Department of Justice had determined that field tests “should not be used for evidential purposes,” and the field tests in use today remain inadmissible at trial in nearly every jurisdiction; instead, prosecutors must present a secondary lab test using more reliable methods.
But this has proved to be a meaningless prohibition. Most drug cases in the United States are decided well before they reach trial, by the far more informal process of plea bargaining. In 2011, RTI International, a nonprofit research group based in North Carolina, found that prosecutors in nine of 10 jurisdictions it surveyed nationwide accepted guilty pleas based solely on the results of field tests, and in our own reporting, we confirmed that prosecutors or judges accept plea deals on that same basis in Atlanta, Boston, Dallas, Jacksonville, Las Vegas, Los Angeles, Newark, Philadelphia, Phoenix, Salt Lake City, San Diego, Seattle and Tampa.
This puts field tests at the center of any discussion about the justice of plea bargains in general….
Even trained lab scientists struggle with confirmation bias — the tendency to take any new evidence as confirmation of expectations — and police officers can see the tests as affirming their decisions to stop and search a person. Labs rarely notify officers when a false positive is found, so they have little experience to prompt skepticism. As far as they know, the system works. By our estimate, though, every year at least 100,000 people nationwide plead guilty to drug-possession charges that rely on field-test results as evidence. At that volume, even the most modest of error rates could produce thousands of wrongful convictions….
In 1972, the Department of Justice published a training guide for forensic chemists in the nation’s crime labs, emphasizing that they were “the last line of defense against a false accusation,” but 40 years later, that line had largely vanished. A federal survey in 2013 found that about 62 percent of crime labs do not test drug evidence when the defendant pleads guilty….
[212 of 301 arrests by the Houston Police Department ‘were based on evidence that lab analysis determined was not a controlled substance, or N.C.S.’] In our own examination of those 212 cases — thousands of pages of arrest reports, court filings and laboratory-testing records, along with interviews of prosecutors, police executives, officers, defense attorneys and innocent defendants who pleaded guilty — we saw a clear story about both who is being arrested and what is happening to them. The racial disparity is stark. Blacks made up 59 percent of those wrongfully convicted in a city where they are 24 percent of the population, reflecting a similar racial disparity in drug enforcement nationally. Patrol units, not trained narcotics detectives, appeared to be the most prolific field-test users.
The United States Department of Justice was once among the leading voices of caution regarding field tests, and encouraged all drug evidence go to lab chemists. But in 2008, the Justice Department funded a program developed by the National Forensic Science Technology Center, a nonprofit that provides crime-lab training, to reduce drug-evidence backlogs. Titled Field Investigation Drug Officer, the program consisted of a series of seminars that taught local police officers how to administer color field tests on a large scale. In its curriculum, the technology center states that field tests help authorities by “removing the need for extensive laboratory analysis,” because “the field test may factor into obtaining an immediate plea agreement.” The Justice Department declined repeated interview requests.
Field tests provide quick answers. But if those answers and confessions cannot be trusted, Charles McClelland, the former Houston police chief, says, officers should not be using them. During an interview in March, McClelland said that if he had known of the false positives Houston’s officers were generating, he would have ordered a halt to all field testing departmentwide. Police officers are not chemists, McClelland said. “Officers shouldn’t collect and test their own evidence, period. I don’t care whether that’s cocaine, blood, hair.”
Judges, too, have the power, and a responsibility, some argue, to slow down the gears of the system….
People plead guilty when they’re innocent because they see no alternative. People who have just been arrested usually don’t know their options, or even that they have an option. “There’s a fail-safe in there, and it’s called the defense lawyer,” says Rick Werstein, the attorney now representing Albritton as she seeks to finalize her exoneration. Defense lawyers can demand a lab analysis, and they exist to help defendants navigate the consequences of the jail time while they wait, even as they explain the even higher costs of a felony conviction. They are fully authorized to pursue alternative deals….
Felony records are digitally disseminated far and wide, and can haunt the wrongly convicted for years after they are exonerated.