At the police academy four years earlier, Helms was taught that to make a drug arrest on the street, an officer needed to conduct an elementary chemical test, right then and there. It’s what cops routinely do across the country every day while making thousands upon thousands of drug arrests.
It’s rare that the New York Times and ProPublica collaborate on a project, so it’s not surprising when that collaboration produces an expose as devastating as this one. This feature article, investigating how “roadside drug test kits” commonly used by police have led to thousands of wrongful convictions, currently leads the websites of both Pro-Publica.org and the New York Times Magazine. It is worth reading in its entirety, and worth passing along to friends and family members.
In 1973, the same year Richard Nixon began what we now call the “War on Drugs,” a pair of California inventors came up with a quick and easy chemical test, patented as a “disposable comparison detector kit,” for police to use to detect the presence of illegal drugs when they make an arrest. The wholesale cost of these tests amounts to approximately two dollars each, per test. Despite their comparatively antique origins, police departments throughout the country continue to use these tests to make drug arrests after examining alleged “evidence” found on the persons—or often in the cars or homes—of those arrested.
In the course of their investigation, the Times and ProPublica discovered the following disturbing facts about these 43- year old, vintage tests:
1) The tests are prone to false positives:
Some tests...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.
Other problems include the temperature at which the test is taken, and even the degree of lighting available when the officer examines the results.
2) There are no established error rates for these tests, predominantly because the rate of error is highly dependent upon the competence of the officers who use them. In the rare cases where the evidence gathered was re-examined, either by internal government investigations or by outside sources like the Times, the high rate of error as a result of police misunderstanding how to interpret or even how to conduct the tests became blatantly obvious:
In Las Vegas, authorities re-examined a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives. 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 instance, police-seized evidence from Hillsborough County Florida Detectives was re-evaluated, disclosing fifteen false positives in which the Detectives mistakenly determined the presence of methamphetamine as a result of the tests. Pro-Publica determined after a review of the Hillsborough department records that the mistaken results were due to misinterpretation of the test’s instructional materials.
3) There is no centralized regulation of the sale or manufacture of these tests. Police departments adopted them primarily because of their quick and convenient nature, and kept on using them, even after their technology had been rendered obsolete:
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.
The 1978 the Department of Justice determined that these error-ridden tests should not be used for evidentiary purposes in criminal trials, and in nearly all jurisdictions legal prohibitions were swiftly enacted prohibiting their admission as evidence in such trials. To prove their case, before they throw someone into a metal cage for years and ruin his or her future for possessing an illegal chemical, prosecutors must use far more reliable laboratory test results.
The problem is that the vast majority of drug arrests never reach trial. They are “plea-bargained” at the pretrial stage, overwhelmingly based on evidence obtained from these unreliable and evidentiary- challenged two-dollar chemical reaction tests. Arrestees, usually poor (because that’s who the police target) are often in no economic position to hire a decent lawyer who could challenge the veracity of these tests:
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 major segment of the Times/ProPublica investigation describes the experience of Amy Albritton, wrongly arrested by Houston police and imprisoned for allegedly possessing about .02 grams of something that “tested,” according to the arresting officer, as “crack cocaine” seized from her boyfriend’s car. Like most people of limited means arrested for drug offenses, she was provided with an overworked, apparently utterly disinterested public defender who advised her to take a plea bargain and serve a 45 day sentence or else risk two years of imprisonment. She did what most desperate people would do under the circumstances (especially after being advised to do so by her counsel)--she took the plea. After serving her sentence, she was fired from her job, lost her ability to rent an apartment after her “felony” conviction, and effectively lost the ability to effectively care for her son, who has cerebral palsy.
Meanwhile the Houston Crime lab continued to store the piece of alleged “crack” that prosecutors had used to destroy Albritton’s life, along with 22000 other samples collected by 2007 as part of a state-organized effort to combat anticipated “drug offenses” which the Houston police, along with other state organizations, “expected” to be committed by African- Americans who had fled to Texas as the result of Hurricane Katrina (yes, you read that right). The crime lab eventually came under fire as a “failed forensic agency” due to mishandling of evidence and sheer incompetence, fostered in part by budget cuts:
By 2010, the lab had been discredited by a decade of botched science and scandal. Thousands of untested rape kits were shelved from unsolved assaults. Errors in fingerprint matches were discovered in more than 200 cases. The lab had lost key blood samples; employees had tampered with or falsified other evidence.
Finally, after a forensic scientist actually tested the allegedly offending substance used to convict Albritton with gas chromatography/ mass spectrometry, it turned out to be aspirin and caffeine. An additional piece of “substance” used to intimidate Amy Albritton into plea bargaining turned out to be (likely) a piece of unclassifiable food. By this time, however, Albritton had served her sentence and her life was effectively ruined. The article details what her existence has been like since her phony arrest and conviction. It is not good. The Texas Criminal Court of Appeals overturned her conviction in June of this year. Her life remains effectively tarnished.
ProPublica determined that prosecutors in most major cities in the country rely almost entirely on plea bargains to obtain drug convictions. Of the county and state felony convictions for drug charges, 90 percent of convictions come from plea deals. In Kansas, for example, 97% of drug possession convictions are the result of guilty pleas. In Harris County, Texas, the figure is 99.5%. Nationwide, an average of 100,000 people yearly plead guilty to drug possession as the result of evidence obtained from these field tests. As the article points out, “[a]t that volume, even the most modest of error rates could produce thousands of wrongful convictions.”
But these are not “modest error rates.” They are error rates that have been shown to be on the order of 20-30%.
Their investigation determined that nine different companies sell these types of tests, and despite Justice Department guidelines calling for test-kit packaging to contain some type of warning about their potential unreliability (including “a statement that users of the kit should receive appropriate training in its use and should be taught that the reagents can give false-positive as well as false-negative results”) the three largest manufacturers have ignored those guidelines. One “added” such a warning only after being advised of the Times/ProPublica inquiry. A Federal investigation in 2013 found that when a defendant pleads guilty, more than half of the crime labs do not perform any test of the alleged substance. The Harris County District Attorney’s smallish “Conviction-Integrity Unit” in 2014 found, literally, hundreds of cases in which “no controlled substance” was found after thorough forensic testing was performed.
In other words. the defendants who had plead guilty to these drug offenses were, based on the actual evidence, not guilty. The Houston Crime lab actually communicated these “variants” to the DA’s office, but there was little or no follow-up, even though it meant that likely hundreds of people had been wrongfully convicted. Ultimately the DA’s Integrity unit prevailed on the new District Attorney to re-examine over three hundred erroneous convictions and “guilty pleas,” including Albritton’s. Her conviction was overturned by the Texas Criminal Court of Appeals, but has yet to be finalized by the trial court that convicted her.
The article also examines the stark racial disparity applied in these “roadside” drug arrests:
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.
Finally, the authors examine, in detail, why the innocent tend to plead guilty, despite the falsity of evidence against them, and the efforts of the Harris County, Texas Conviction Integrity unit to overturn these wrongful convictions. The article also explains why Harris county is unique among the many jurisdictions that have used these tests, simply because they made the effort to test evidence from closed cases.
The authors estimate that the number of people wrongfully convicted from police and prosecutors’ reliance on these cheap drug tests is in the tens of thousands. As felony convictions follow the convicted for a lifetime, those people have effectively had their lives ruined. The Times/ProPublica investigation is just another example of why the “War on Drugs “ continues to be one of the most destructive and misguided mistakes in American history.