On January 5, New York State Inspector General Lucy Lang released a report that showed more than 1,600 incarcerated people were penalized after receiving false positives from faulty drug tests.
“Although the mounting public health crisis of substance misuse sadly exists behind bars,” Lang said at a press conference, “it by no means justifies the ultimately arbitrary penalties imposed on already vulnerable community members in our state facilities.”
In September 2019, the New York State Department of Corrections and Community Supervision (DOCCS) alerted the New York State inspector general that tests obtained from the Microgenics Corporation and installed in January of that year seemed to be giving false positive results when testing for the partial opioid agonist buprenorphine and synthetic cannabinoids. For eight months, from January to August 2019, people with positive drug test results were subjected to delays in parole eligibility, lost privileges like telephone use, or solitary confinement.
Lang’s report—which reviewed tens of thousands of documents and included 40-plus interviews with DOCCS staff, incarcerated people, Microgenics representatives and toxicologists—found not only that the drug tests often did not work but that, as countless prisoners voiced their concerns, department officials failed to address the problem. The inspector general’s office concluded, among other things, that DOCSS had “failed to take prompt corrective action upon learning that some incarcerated individuals had been charged with drug violations and punished due to false positive drug screening test results,” “improperly procured [Micorgenics’] drug testing systems,” and did not “adequately oversee and train staff” administering those tests.
The DOCSS urinalysis testing policy, for example, requires a second, separate screening if someone tests positive, but the department merely tested an incarcerated person with the faulty Microgenics test, and then, to confirm, employed the same exact test again. In addition, Microgenics’ own research revealed that some of the drug tests triggered positives from the presence of common medications and other substances, like over-the-counter antacids or natural sweeteners. Microgenics did not disclose this information to DOCCS.
“This stands as a heartbreaking example of how the absence of transparency can undermine due process and basic human rights.”
The department has since switched to different tests. But the consequences of the false testing over the eight-month period were stark. DOCSS confined a woman at Albion Correctional Facility, who had never before tested positive during her two-year incarceration, to her cell for 40 days and gave her 45 days of solitary confinement, which resulted in her losing her prison job, recreation time and visits from her three children. Another incarcerated person had also never before failed a drug screening, and he questioned a Microgenics representative, who assured him of the test’s veracity. The man also had many privileges stripped and was sentenced to 40 days’ confinement in his cell.
Lang forwarded the report to the state attorney general to investigate any possible crime, particularly if DOCSS violated state finance law. Meanwhile, three lawsuits are also pending, including a class-action suit from incarcerated people who were affected.
It’s not the first time prisoners have been made to suffer for the inaccuracy of drug tests. Last summer, incarcerated people sued the Massachusetts Department of Corrections after being punished over drug testing of their legal mail, which their attorney described as “less reliable than the flip of a coin.”
“This stands as a heartbreaking example,” Lang said of her report’s findings in New York, “of how the absence of transparency can undermine due process and basic human rights.”