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Notoriously faulty drug tests are coming back with false positives after screening prisoners’ legal mail for the synthetic cannabinoid K2, according to a lawsuit filed against the Massachusetts’ prison system last week. And prisoners are allegedly being given solitary confinement or losing visitation privileges as a result.
“When used to test for drugs sprayed on paper (such as legal mail), these tests are less accurate than witchcraft, phrenology, or simply picking a number out of a hat,” the lawsuit alleges. “Interactions with innocuous chemicals commonly found in paper frequently create false positives—almost 80% of the time, according to one DOC official’s estimate.”
Fearing the potential of severe consequences, some people incarcerated in Massachusetts Department of Correction facilities are starting to refuse correspondence altogether, forcing attorneys to drive long distances to hand-deliver court documents and other important communications to their clients.
“It’s used in a context where it’s just obviously failing at every turn. They’ve been using almost exclusively—or, I think, actually exclusively—on legal mail,” Ellen Leonida, a partner at the firm BraunHagey & Borden and one of the attorneys involved in the lawsuit, said of the presumptive drug tests. “I refuse to believe that every defense attorney in Massachusetts is suddenly a drug dealer.”
“Even if there was a flood of K2 coming into the DOC, these tests wouldn’t detect it,” she added.
If that frustration over presumptive drug tests sounds familiar, it’s because similar complaints have been made against police departments in recent years.
The Massachusetts Department of Correction allegedly uses a test called NARK 20023 from Sirchie's NARK II product line. NARK II products have previously been accused of flagging herbal “male enhancement” products and cotton candy as meth and breath mints as crack cocaine. Police have also allegedly used similar field drug tests to arrest people over bird poop or drywall dust that tested positive as cocaine.
Even the test manufacturer warns the results should be backed up by further evidence.
“ALL TEST RESULTS MUST BE CONFIRMED BY AN APPROVED ANALYTICAL LABORATORY!” a note for a NARK II product on Sirchie’s website reads. “The results of this test are merely presumptive. NARK® only tests for the possible presence of certain chemical compounds.”
“I refuse to believe that every defense attorney in Massachusetts is suddenly a drug dealer.”
But in Massachusetts, confirming test results from chemicals found on prisoners’ mail can be a months-long process, according to the lawsuit. So the incarcerated people who are accused can either quickly accept responsibility and face lesser punishment despite being innocent, or give up privileges and possibly enter solitary confinement while awaiting more accurate lab data.
To avoid that scenario, some incarcerated people are no longer accepting mail, which cuts off an important way to get in touch with their attorneys during the pandemic, the lawsuit alleges.
“A lot of the lawyers that we talked to said that they’re now driving to the prisons where their clients are located—which sometimes takes hours—to hand-deliver letters to be able to communicate with their clients,” Leonida said. “The fact that this has been going on during the pandemic, when there are no contact visits allowed—it’s really foreclosing one of the major means of communications with people’s clients, and also a way to get their court documents.”
One attorney named as a plaintiff in the lawsuit, James P. McKenna, alleged that after he sent his incarcerated client court documents and a letter in 2018, he received a call from an officer at the prison that his mail had tested positive for K2. He didn’t even know what K2 was at the time, according to Leonida.
Not only was he concerned about how the K2 accusations would impact him, McKenna was worried about his client. And he seemingly had good reason to be: The incarcerated person lost their job and received a disciplinary ticket, was confined to a cell, and was threatened with a potential $100 fee if a future confirmatory lab test came back positive, according to the lawsuit.
They were later told that to reverse some of those punishments, they could simply admit that McKenna intentionally sent the contraband. The lab test on the mail later came back negative.
Lisa Newman-Polk, a Massachusetts-based attorney also named as a plaintiff in the lawsuit, suffered over such tests, too. She once tried to send her incarcerated client, Eugene Ivey, a legal package months after he was granted parole. As a result, officers told Ivey that the mail tested positive for synthetic cannabinoids, temporarily moved him to an isolated cell, accused him of drug trafficking, and charged him with several offenses in a disciplinary report, among other harms.
“To say that this experience has been highly upsetting is an understatement,” Newman-Polk wrote in an October 2020 letter to Massachusetts DOC Commissioner Carol A. Mici, who is also named as a defendant in the lawsuit. “It has had a negative impact on my health and my family, as any accusation against Mr. Ivey was effectively an accusation that I committed a serious criminal offense.”
Although lab test results later proved his innocence, Ivey was traumatized by his confinement and horrified by the potential consequences he might’ve undeservedly faced, according to the lawsuit.
“Mr. Ivey had worked very hard to educate himself and prove he was someone who deserved a chance at parole. He would not have done anything to jeopardize that, and a serious disciplinary offense like the one he was wrongly accused of could have resulted in the parole decision being revoked,” the lawsuit alleged.
In yet another case, an incarcerated man named Julian Green accepted legal mail from the Boston College Innocence Program in 2019, though the parcel was taken away for testing and came back positive for K2. Similarly, Green was confined to a cell, given a disciplinary ticket, and threatened with fees over more conclusive lab testing—which later showed there weren't any drugs in his mail.
By the time Green ultimately received the legal communication, it was unreadable. Now, he’s “extremely nervous” to receive further correspondence.
“In the immediate future, we hope that the DOC stops using this test that everybody should know is meaningless,” Leonida said. “And in the long term, we hope that Sirchie will stop marketing this test that it knows doesn’t produce accurate results.”
Sirchie did not immediately respond to a request for comment.
A spokesperson for the Massachusetts Department of Correction said in an email to VICE News that “the DOC does not comment on pending/ongoing litigation.” The spokesperson did not respond to a follow-up question asking the department to elaborate on its existing policies surrounding presumptive drug tests.