The $2 roadside drug-test kit is the go-to weapon of the War on Drugs, despite its incredibly high failure rate and the scientific consensus that the tests need to be validated in labs later; once you've had a random crumb of sandwich or aspirin identified as drugs by one of these kits, you're almost certain to plead guilty, thanks to the heavy-handed tacts of prosecutors and the disarray of public defenders, and then you're off for prison time and a lifetime as a felon.
Propublica's long, investigative piece on these drug tests follows Amy Albritton, a single mom who was caring for her disabled son when a Louisiana cop pulled her over, bullied her into submitting to a search, and mistakenly identified a fragment of over-the-counter painkiller and a crumb of unidentified substance (probably a bit of food) as drug residue.
Albritton was railroaded into pleading guilty, served a few weeks in prison, lost custody of one of her children, left her disabled son with inadequate care, lost her job and her home, had all her belongings put out on the street and taken to the dump, and spent the next several years eking out a living in the few jobs that would employ a convicted felon. None of the samples taken by the officer were tested in a lab during any of this process.
Though the Louisiana authorities eventually processed the samples in Albritton's case, concluded that she was innocent, and tried to contact her to expunge her record, they were unable to locate her (her felony conviction and ruined left had sent her from place to place, making her hard to find). Propublica eventually located her, but she is still embroiled in the bureaucratic process of expunging her record, which will still not clear her record, as US felony records are widely replicated in private databases used in background checks, and these databases don't update reliably when records are cleared.
Propublica's analysis of the records show that Albritton's case isn't unusual. One DA office's own investigation found that "74 percent of the convicted didn't possess any drugs at the time of their arrest" and "75 percent of the innocent continue to live with convictions on their records, some for as long as 13 years."
One other important (and unsurprising) finding: black people are significantly more likely to experience wrongful convictions than white people.
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 kits, or the officers interpreting them, got it wrong most often when dealing with small amounts of suspected drugs. Sixty-three percent of the N.C.S. cases involved less than a gram of evidence. The smallest possession cases are the ones in which a field test can be of greatest consequence; if officers find larger quantities of white powder in dozens of baggies or packaged in bricks, they have sufficient probable cause to make an arrest regardless of what a color test shows. (Though in those cases, too, they are generally required to test the drugs.) It's widely assumed in legal circles that these wrongfully convicted people are in fact drug users who intended to possess drugs. Barry Scheck, a founder of the Innocence Project, a nonprofit group that seeks to overturn wrongful convictions, says some who work toward exoneration have complained to him that those exonerated of drug charges often are just accidentally not guilty, and shouldn't be added to the National Registry of Exonerations. The assumption is not entirely without basis — 162 of the 212 N.C.S. defendants had criminal histories involving illegal drugs. However, 50 had no criminal history involving drugs at all.
All of the 212 N.C.S. defendants struck plea bargains, and nearly all of them, 93 percent, received a jail or prison sentence. Defendants with no previous convictions have a legal right in Texas to probation on drug-possession charges, even if they're convicted at trial. But remarkably, 78 percent of defendants entitled to probation agreed to deals that included incarceration. 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. In contrast, the median for defendants in which the field test indicated the wrong drug or that the weight was inaccurate — that is, the defendants who actually did possess drugs — was 22 days. Not only do the innocent tend to plead guilty in these cases, but they often do so more quickly.
Police, Prosecutors and Judges Rely on a Flawed $2 Drug Test That Puts Innocent People Behind Bars [Ryan Gabrielson and Topher Sanders/ProPublica]
(Image: Police traffic stop Millington TN 2013-11-24, Thomas R Machnitzki, CC-BY)