More Prosecutors Refuse To Accept Guilty Pleas Based On Faulty $2 Field Drug Tests

Legal Issues

from the at-long-last,-some-forward-momentum dept

Thanks to ProPublica’s research — and a high-profile article in the New York Times — prosecutors in Oregon will no longer accept guilty pleas based solely on the results of often-inaccurate field drug tests.

Last July, shortly after ProPublica and The New York Times Magazine published an article detailing that the kits are prone to error and years earlier had helped account for roughly 300 wrongful convictions in Houston, the Multnomah County District Attorney’s Office in Portland decided to change the way it secured guilty pleas in drug possession cases. Today, when a defendant pleads guilty before the lab analysis is performed, prosecutors must still have the field test results double-checked.

J. Russell Ratto, the head of conviction integrity at the district attorney’s office, had asked his colleagues whether it might be wise to change the policy after the article’s publication.

“Our DDAs [deputy district attorneys] are always looking to make sure we’re using the very best practices,” said J.R. Ujifusa, the deputy district attorney who oversees drug prosecutions.

It’s a good start. The $2 drug tests are great for law enforcement drug warriors, but not much good for anyone else. The cheap tests, performed in the field by officers, have been known to call everything from baking soda to donut glaze illegal substances. This is often good enough for government work, especially when the government work involves obtaining convictions.

Harris County, Texas — where the 300 wrongful convictions were uncovered — is also no longer accepting pleas based on field test results. But that only solves part of the problem. The other problem is what to do with those accused of drug possession. Treating the tests as fallible helps prevent wrongful convictions, but those facing drug charges remain locked up while waiting for lab test results.

Thomas Johnson of Fault Lines points out that the Portland DA’s office has its head and heart in the right place, but it won’t do much for people picked up by cops utilizing $2 field drug tests, not until the rest of the system is overhauled.

You have to give up what the court orders for bail. You can post a percentage of the bail, but it’s the judge who decides the bail amount. This bail amount can vary depending on the type of drug you’re suspected of possessing and your past record. For instance, if you have a violent incident on your record, it will increase the bail for your new charge. The same goes for a previous drug conviction.

Oregon doesn’t allow independent bail bondsmen so the bond must be paid directly to the state. Ten percent of the bail is the usual security amount, but even that percentage can be unaffordable.

Bail can vary from the $10,000 on a charge of unlawful meth possession, for example, to $75,000 for someone accused of sex abuse.

If someone can’t come up with $1,000, they’re stuck in jail while awaiting lab results. They can’t plead guilty but they can’t be proven innocent either. They’re in limbo — the sort of limbo that can ruin someone’s life before they even have a chance to be exonerated.

As of 2015, the goal at the state crime lab was to have evidence tested within 30 days, but the average turnaround was 65 days. For many defendants, if you can’t afford bail, you are already living hand to mouth and 65 days in jail will effectively finish you off. You’ll be starting from scratch once you hit the street.

Fault Line’s Johnson suggests another solution: if the DA’s office is conceding that these drug tests are often inaccurate, it should follow this assumption to its logical conclusion and work on changing this part of the system as well. If it’s really interested in not ruining people’s lives over a $2 drug test, it needs to push for greatly-reduced bail or no bail at all in cases where the only evidence at the time of booking is subject to a mandatory second pass.

Filed Under: accuracy, field drug tests, oregon