1 Problem: Roadside Drug Tests Are Remarkably Flawed & Ruining Thousands of Lives
In his 2004 single “99 Problems,” Jay Z references an interaction with a police officer after being pulled over for a relatively harmless offense – “you was doing fifty-five in the fifty-four.” What ensued, however, is an exercise in the kind of power dynamics that gives law enforcement a presumption of good moral standing, a luxury not bestowed upon Jigga in the described scenario. “Child, I ain’t passed the bar, but I know a little bit – enough that you won’t illegally search my shit,” he raps before dropping a line from the officer’s POV: “Well we’ll see how smart you are when the K-9 come.”
Such a scenario has happened to millions of Americans, and in far too many cases, the accused are not only dealt an unfair hand, but have their lives ruined by wrongful convictions and the socially implemented presumption of guilt placed on drivers being pulled over, regardless of cause. In a comprehensive investigative report co-published by Propublica and the New York Times Magazine, such incidents are examined with the finest-toothed of combs. The article focuses on the state of roadside drug tests administered on site by police officers who have pulled over drivers, for a host of reasons, and then test them for controlled substances. The results of the investigation are pretty damning and point to the fatal flaws in the currently enforced system. While much of the report focuses on one particular city, there are some nationwide statistics that are shocking.
“How a $2 Roadside Drug Test Sends Innocent People to Jail” launches its premise from the following inquiry: “[t]ens 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?” As a result of these faulty tests, millions have been not only wrongfully convicted of possessing an illegal substance, but also have their lives turned upside down with a felony on their record which in turn can “restrict employment, housing and — in many states — the right to vote.”
These roadside drug-testing kits, the writers explain, “cost about $2 each and have changed little since 1973” and many “use a single tube of a chemical called cobalt thiocyanate, which turns blue when it is exposed to cocaine.” However, that alone is a misleading description of the elements at play. “[C]obalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners,” they report. Even things like weather and other factors can negate the results of some drug-testing kits. “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,” according to the report.
Of the many complexities involving the criminal-justice system that compound the problems with roadside drug testing is the fact that, shockingly, “[n]o central agency regulates the manufacture or sale of the tests, and no comprehensive records are kept about their use.” Even since the early 1970s, when the Drug Enforcement Administration was formally established by Richard Nixon, there were studies published which warned against the reliance upon such kits. This includes a 1974 study by the National Bureau of Standards cited in the report, which included the warning that field drug tests “should not be used as sole evidence for the identification of a narcotic or drug of abuse.” After all, “[p]olice officers were not chemists, and chemists themselves had long ago stopped relying on color tests.”
Also in the 1970s, it appeared that the United States began to support such arguments on a national level, determining in ’78 that such field tests “should not be used for evidential purposes,” a fact that in some ways has stuck. As the report explains, “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 even so, it doesn’t really matter, and that’s because “[m]ost drug cases in the United States are decided well before they reach trial.” Plea bargaining results in an overwhelming amount of cases in which the accused – even if innocent – agree to much lighter sentences to avoid a trial and the potential for egregiously long prison sentences, and many times the (unknowingly) false positives in the field drug kits are the reason for such a decision.
While it may seem counterintuitive that someone would plead guilty to an offense they did not commit, the prevalence of such cases is really high. However, formal records are lacking, which makes it tricky to track just how many drug-related convictions are born out of plea bargains of the wrongfully convicted. “The federal government does not keep a comprehensive database of prosecutions in county and state criminal courts, but the National Archive of Criminal Justice Data at the University of Michigan maintains an extensive sampling of court records from the 40 largest jurisdictions,” the reporters explain. “Based on this data, we found that more than 10 percent of all county and state felony convictions are for drug charges, and at least 90 percent of those convictions come by way of plea deals.”
Such statistics are supported in locally examined records, as well. ” 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,” a trend supported in the writers’ own research, which found 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.” Such independent research led the investigative reporters to come up with a nationwide glance at the amount of cases involving plea deals from cases involving faulty drug testing. “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.”