WA Prisons Still Using Drug Test Kits at Center of False-Positives Lawsuit

December 4, 2023

Sabastian Johnson had been unsuccessfully trying to get copies of a legal document related to his case into Washington Corrections Center (WCC), where he’s been incarcerated since 2018. Legal mail can only be sent in via legal representation, which he doesn’t currently have. So eventually his wife tried to mail it in using the return address of a lawyer who’d represented him several years ago. The envelope looked suspicious enough to WCC mailroom staff to warrant an investigation.

According to a Washington State Department of Corrections (WDOC) incident report dated September 7, the envelope contained 27 pages of printer paper with what “appeared to be an unknown substance on the surface.” The papers were then tested using a “Synthetic Cannabinoids test kit in which it showed an immediate yellow color reaction which is a presumptive positive.” WDOC never attempted to confirm the results.

Colorimetric test kits are used for the controversial practice known in many correctional systems as “presumptive drug-testing.” On September 6, one day before Johnson was written up for knowingly conspiring to bring synthetic cannabinoids into a WDOC facility, the department had updated its policy on presumptive testing to stipulate that prisoners could no longer be punished based solely on results of those test kits. It appears that in practice, staff are continuing to use them that way.

Johnson said he asked to have a WDOC-contracted lab confirm the results, but was denied.

The presumptive test kits use chemical reagents that turn different colors when they interact with different substances, and the results are meant to correspond with various classes of banned drugs.

These kits require no advanced training to use, because they’re intended to be a low-barrier first step in identifying samples to send on for confirmatory testing at a lab; they’re not meant to be used as evidence in and of themselves. But many prison systems use them that way, even though the results are prone to false positives and notoriously subjective—one officer might see yellow where another sees brown, and the colors are also prone to darkening or otherwise changing with time. The tests have been the subject of multiple lawsuits.

“I’ve got no possession or use history. None at all. This just isn’t what I do,” Johnson told Filter. “These guys just do whatever they want. It doesn’t matter what their bosses say, or that these things don’t even work.”

At the end of August, Columbia Legal Services (CLS) notified Secretary of the Department of Corrections Cheryl Strange that it was preparing to file a class-action lawsuit on behalf of four people sanctioned by WDOC over presumptive drug test results in 2022. Of particular concern were false positives for synthetic cannabinoids. Clifton Bell, et al. v. Washington State Department of Corrections was ultimately filed on September 22, one day after CLS filed a separate lawsuit against WDOC for withholding public records of its presumptive testing policies.

WDOC told Filter that requests for confirmatory testing can still be denied if the department doesn’t have a lab to perform them.

“Effective immediately, the use of Presumptive Drug Testing as described in DOC Policy 420.385 will NOT be the sole determining factor of guilt in [infractions] for drug possession,” assistant secretaries Don Holbrook and Jeannie Darneille wrote in a department-wide staff memo dated September 6. “The Department has determined that incarcerated individuals should have an option to request a confirmation test in circumstances similar to confirmation testing for urinalysis, breathalyzer and oral swab tests.”

WDOC is reviewing infraction verdicts issued solely on the basis of presumptive testing if the infraction took place in the past two years before September 6. But there’s no similar recourse for Johnson, or anyone else infracted after the policy was supposedly fixed.

Johnson told Filter he asked the hearings officer to have a confirmatory test performed by a WDOC-contracted lab, but was denied. The updated WDOC policy now has a form prisoners can use to formally request confirmatory testing, but the vast majority of prisoners don’t know that. We were never informed of the update, and are restricted from viewing the policy itself in the first place.

 

 

According to WDOC Media Relations Manager Tobby Hatley, requests for confirmatory testing can still be denied if the department doesn’t have a lab to perform it.

“For urine and oral fluid testing there is a lab that can conduct confirmation testing,” Hatley told Filter. “We are in the process of finding a lab that can conduct tests of substances found in an individual’s possession.”

Hatley did not confirm whether any infraction hearings had been carried out in the absence of confirmatory lab testing, stating only that presumptive testing “will not be the sole determining factor for a guilty finding.”

The investigator who interviewed Johnson in late September observed him “becoming argumentative while being asked basic questions,” and wrote that in his professional opinion, all the evidence collected showed Johnson to be guilty. 

He was also reclassified to a higher security level, and told he’ll be shipped to a more restrictive facility. He just doesn’t know where yet.

That evidence collected consisted of six photographs of the document, three JPay emails he’d exchanged with his wife about legal papers arriving September 7, and a mailroom officer’s confirmation that the attorney whose name was cited hadn’t send Johnson mail in several years.

At Johnson’s October 12 hearing, he was found guilty and sanctioned with 30 days’ confinement to his cell; loss of 75 days’ good time; three months’ random drug-testing; six months’ loss of JPay privileges and fee-based recreation like weight-deck time; and a ban on attending special events for one year.

He was also reclassified to a higher security level, and told he’ll be shipped to a more restrictive facility. He just doesn’t know where yet.

“I still got my appeal in, and they are already trying to transfer me out of here,” Johnson said. “This is mentally discouraging. I’ve been doing great here. No infractions, no [behavior observation entries]. My whole support system is here … I get visits every weekend here. This just really sucks.”

In some state prison systems, including WDOC, disciplinary hearings don’t use the legal standard of a “preponderance of evidence”; they just require “some” evidence. In other words, they don’t require evidence beyond a reasonable doubt to find someone guilty. Evidence of any kind is enough.

 


 

Image via Brown County, Wisconsin

Jonathan Kirkpatrick

Jonathan covers harm reduction and re-entry. He's incarcerated at Washington Corrections Center, where he's a Teacher’s Assistant for re-entry workshops and trains peer educators in HIV and hepatitis C harm reduction. His writing has been published by the AppealTruthoutJewish Currents and the Seattle Journal of Social Justice. His Washington State Department of Corrections ID is #716850, and until WDOC corrects a 29-year-old paperwork error his name in Securus is “Jonathon.”

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