Lawsuit says DOC accused lawyers, inmates based faulty drug test
Test for cannabinoid residue on prison mail called ‘less accurate than witchcraft’
ARE LAWYERS ACTUALLY sending letters to inmates in Massachusetts prisons that are meant not so much to be read but smoked?
It sounds like the plot to a zany dramedy, but a lawsuit filed this week claims that’s the implication of findings against two lawyers and two inmates who have been tripped up by a faulty drug test used by the Department of Correction to detect drug residue on mail sent to state prisons. The attorneys and inmates are co-plaintiffs in the lawsuit.
The suit, filed on Wednesday in Suffolk Superior Court, says the DOC is using unreliable tests on mail sent by lawyers to clients in state correctional facilities. It says the tests, designed to detect synthetic cannabinoids that have been sprayed on paper, result in false positive tests more often than not and are “less accurate than witchcraft, phrenology, or simply picking a number out of a hat.”
The suit was filed by lawyers from a San Francisco firm, BraunHagey & Borden, and Justice Catalyst Law, a New York-based nonprofit organization.
The lawsuit charges that inmates receiving mail that tests positive for the drugs are faced with an “untenable dilemma.” It says that they can admit to responsibility for a crime they did not commit, or request a confirmatory lab test on the mail, an option that triggers sanctions that can include removal to solitary confinement and loss of various privileges while awaiting the results, which can often take months.
The widespread use of the faulty test, the suit says, has put a chill on communication between lawyers and clients in state prisons, with attorneys scared to send letters and inmates fearful of signing for mail, as they’re required to do before being given letters.
The suit says the DOC also threatens to impose fines and other charges on inmates whose follow-up tests come back positive, a practice that coerces prisoners into waiving the second tests and instead confessing to crimes they did not commit. The suit says many inmates are now refusing to accept mail from their lawyers, a principal means of communication about pending cases, out of fear of the faulty tests.
The suit names the DOC, Sirchie Acquisition Company, the North Carolina-based company that makes the test, and Premier Biotech, a Minnesota company that sells the product.
A spokesman said the DOC does not comment on pending or ongoing litigation. Neither Sirchie nor Premier Biotech responded to a request for comment.
Two of the lawsuit’s plaintiffs, Lisa Newman-Polk and James McKenna, lawyers who represent DOC inmates, say they were informed by DOC officials that mail they sent to clients tested positive for synthetic cannabinoids.
The suit says McKenna’s client who received the letter in question was put in 23-hour-a-day isolation for three days and stripped of his prison job. The suit says the inmate had recently been approved to move to a lower security prison where he would have more privileges, including more in-person family visits, but the transfer was put on hold.
The suit says an unnamed DOC employee told McKenna on at least two occasions that up to 80 percent of positive tests come back negative in follow-up lab testing. The suit says the extraordinarily high false positive rate is a result, in part, of “incomplete, inadequate, and misleading instructions, warnings, and training” provided about the use of the test.
The suit says a document sent in August 2020 by Newman-Polk to Eugene Ivey, one of the two inmates who are also plaintiffs in the suit, tested positive for cannabinoids. Five months earlier, Ivey, who received a life sentence in 1998 for second-degree murder when he was 17, had been unanimously approved for parole.
Following the positive test, the suit says, he was moved to a restrictive housing unit and then faced eight disciplinary charges in connection with the mail from his attorney. Newman-Polk had offered to provide an affidavit attesting that she had not sent mail containing drugs, and she also emphasized to prison officials that Ivey had no incentive to jeopardize his pending release on parole after more than 25 years in prison.
In October 2020, the suit says, the disciplinary charges against Ivey were dropped when the follow-up lab test came back negative.
The suit says the DOC request for proposals on drug testing required that bidders provide information on the sensitivity and accuracy of their products, including listing all substances known to “cross-react, yielding potentially false-positive results.” It says Premier Biotech’s bid included none of this information.
The suit also says DOC established standards that don’t allow the use of products that generate false positives at a rate greater than 0.05 percent and the standards call for termination of any contract for a product with false positives greater than 10 percent.
“In response to a public records request, the DOC was unable to provide any documents suggesting that it monitors the false positive rates associated with any of Sirchie’s tests,” the suit claims.
The class action lawsuit, filed on behalf of state inmates and lawyers who represent people incarcerated in state prisons, asks the court to enjoin the DOC from using the Sirchie test on mail from lawyers to inmates or from relying on the test for any action against inmates. It also seeks to have voided any disciplinary measures taken based on the company’s tests, and to award damages to the plaintiffs and the two classes they represent.
“We brought this lawsuit to protect disempowered people incarcerated by the DOC from the unconscionable decision to use these tests in the face of overwhelming evidence of their inaccuracy,” said Ellen Leonida, a partner at BraunHagey & Borden, in a statement. “We also intend to hold the drug companies liable for knowingly profiting from the misuse of these tests and the misery they are causing.”The head of the state office overseeing legal representation for indigent clients urged the state to abandon the use of the test.
“This flawed test has seriously harmed our clients, attorneys and the attorney-client relationship, and the DOC should immediately stop using it,” Anthony Benedetti, chief counsel of the Committee for Public Counsel Services, said in a statement. “It has found drugs when there weren’t any, and our clients – who have no control over who sends them mail – have been sent to solitary confinement based on these incorrect results. Attorneys have been wrongly accused of sending drugs into DOC facilities when they were simply trying to get legal mail to their clients.”