by Casey J. Bastian

The Massachusetts Department of Corrections (DOC) has been knowingly using drug tests described by plaintiff’s lawyers as “fake” on legal mail to both interfere with attorney/client communications and impose strict punishments without due process. These claims are the basis of a class complaint recently filed by affected prisoners and defense attorneys. “This flawed test has seriously harmed our clients, attorneys, and the attorney-client relationship, and the DOC should immediately stop using it,” said chief counsel Anthony Benedetti.

The tests in question are manufactured by Sirchie Acquisition Company (Sirchie) and distributed by Biotech, Inc (Biotech). The DOC acquired the tests for the purpose of preventing the introduction of contraband through the mail system; chiefly synthetic cannabinoids, which can be sprayed on paper and smoked. Sirchie manufactured the Narcotics Reagent Analysis Kit (NARK) 20023 test and claimed the tests use “crime lab accepted chemistry” designed to “function as a transportable narcotics laboratory.” The problem is that the NARK 20023 tests are fundamentally unreliable. One DOC employee stated that the tests result in false positives “up to 80% of the time.” In 2012, Sirchie issued its “Nark News” brochure that acknowledged it is “almost impossible” to develop a test that will not have “too many unacceptable false positives.”

The Nark 20023 tests ostensibly identify only eight of the synthetic cannabinoids formulas that have been known since 2013. Hundreds of formulas are believed to be in circulation. The National Forensic Laboratory Information System (NFLIS) says almost all of the formulas on the market would not be detected by Sirchie’s NARK 20023 tests. NFLIS data is confirmed by report data the DOC itself possessed prior to the events comprising the DOC conduct described in the class complaint. During a previous 18-month period, the DOC sends dozens of samples to the University of Massachusetts Medical School Drugs of Abuse Lab and it did not once identify one of the eight formulas the Sirchie tests claimed to detect. Every positive test result the DOC submitted for secondary verification was proven to be false. Biotech was aware of the NARK 20023 test limitations when it secured the DOC contract. The DOC contract with Biotech demands that a vendor ensure product reliability and that false positives shall not exceed .05 percent. The DOC is required to monitor for rates exceeding the acceptable percentages and failed to do so the suit alleges.

On October 5, 2021, a class action suit was filed seeking to end these practices. The class complaint identifies four named plaintiffs. Two are DOC prisoners and two others are attorneys. Prisoners Ivey and Green were accused of attempting to introduce synthetic cannabinoids into the prison based on Nark 20023 test results. The only thing either prisoner had done wrong was to be in receipt of legal mail that the DOC staff determined to be “suspicious.” The legal mail was then tested. Without being found guilty of any offense, or even issued a disciplinary ticket, Ivey and Green were placed in disciplinary segregation. The complaint claims that this violates their due process rights because the DOC takes “immediate punitive measures” against any inmate in this situation. All based on knowingly faulty drug detection tests. The DOC does this prior to any opportunity for the prisoner to request secondary testing and while waiting for the results to come back from the lab after it is requested; this process can take months. It is also the prisoner who must pay for the secondary testing. It is alleged that the DOC uses the coercive tactics of this time and expense to force people to accept the charges in exchange for the punitive measures to immediately cease. Many prisoners have succumbed to this pressure.

Green and Ivey were eventually exonerated. It took two months for the results in Green’s case to be returned from the lab indicating that no drugs were present. Ivey had just been granted parole after 25 years and this incident placed that freedom in jeopardy. Adding insult to injury, both were required to pay for the tests themselves. Attorney Newman-Polk is Ivey’s attorney and one of the plaintiffs in the class complaint. Newman-Polk described her experience in a statement in the complaint: “To say that this experience has been highly upsetting is an understatement. 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 I did nothing wrong, I felt responsible for Mr. Ivey’s circumstances since I was the one who sent the mail.” Even though the lab results indicated that Ivey was innocent on September 18, it was not until October 14 that Ivey was released from segregation. The DOC had even sent Newman-Polk a letter on September 28 indicating that Ivey was being punished for introducing contraband, ten days after the DOC knew he was innocent.

Attorney McKenna is the second named attorney-plaintiff. McKenna had sent mail to a client in the DOC and the mail was tested for contraband. A faulty test indicated that drugs were present. The DOC placed the client in the disciplinary segregation and issued a ticket for introducing drugs. Months later the test results came back and proved that, once again, there were no drugs on the legal mail. McKenna’s client states that ten weeks after the results came back, the DOC still tried to pressure him into bringing a claim that McKenna had in fact intentionally sent contraband through the mail. McKenna had done no such thing. The outrageous conduct of the DOC brought McKenna incredible distress as a result of the false allegations. McKenna felt concerned for the possibility of criminal charges, loss of community standing, and the effect of the interference of attorney-client communications. These plaintiffs suffered because the DOC knowingly committed wrongful conduct and willfully violated its lawful duties. This negligence is the primary basis of the class-complaint. The plaintiffs are represented by the firms of Todd & Weld, Justice Catalyst and Braun Hagey & Borden. See: Green v. Massachusetts Department of Corrections, Suffolk Superior Court, Case No. 2184-CV-002283. 

Source: Reuter.com

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