New York Revises 2,772 Prisoner Disciplinary Records After Inspector General Finds Defects in Another Contraband Drug Test
by Douglas Ankney
A November 2023 report by the New York Office of the Inspector General (OIG) detailed grave defects uncovered by an investigation into the Contraband Drug Testing Program of the state Department of Corrections and Community Supervision (DOCCS). That led to another round of expungements of disciplinary actions based on faulty drug testing. As PLN reported, OIG found in January 2022 that DOCCS had wrongfully disciplined over 1,600 prisoners for possessing contraband drugs based on positive results from a field test manufactured by Microgenics—without confirming those results with a lab test, as the manufacturer warned was necessary. [See: PLN, Aug. 2022, p.42.]
DOCCS abandoned the Microgenics test in 2019, only to report to OIG on August 21, 2020, that its replacement, the Sirchie NARK II drug screening test, “included inconsistent instructions, potentially leading to false-positive test results.” Sirchie’s “Statement of Scientific Principles” provided to DOCCS plainly “advises that NARK II tests are ‘designed to confirm probable cause only’ and merely ‘presumptively identify’ families of commonly abused substances.” Each NARK II kit includes a warning that false-positive results are possible, so “ALL TEST RESULTS MUST BE CONFIRMED BY AN APPROVED ANALYTICAL LABORATORY!”
Yet DOCCS Directive 4938 stated: “In a subsequent disciplinary hearing, the positive result of a test of suspected contraband drugs may be used as evidence that the suspected substance is what the test result indicates.” So a positive result from a NARK II test resulted in disciplinary convictions that subjected prisoners to sanctions “including solitary confinement,” as well as “delays in parole eligibility; loss of privileges including receipt of packages, commissary, and telephone; loss of access to prison rehabilitation programs; loss of ‘good time’ parole credit and family visitation rights; missed parole interviews; and other adverse effects on Board of Parole Decisions.”
The OIG report also noted that NARK II testing kits contained errors in their accompanying instructions. One DOCCS guard lieutenant complained that “instructions on the test kit box indicated that a positive result for codeine would produce a green color while the actual pouch inside that same box indicated that a positive result would yield a blue color.” In October 2020, the DOCCS Office of Special Investigations (OSI) identified similar discrepancies in 11 of 13 NARK II test instructions. OSI also admitted to OIG that DOCCS guards were not conducting NARK II tests according to protocol. For example, instead of using the provided loading device to place suspected contraband into pouches for testing, guards were using pen caps and pocket knives, which may have contaminated the samples. Some sequential testing was performed out of sequence, which also produced false-positive results.
OSI conducted a test on ibuprofen using the NARK II Kit 20033, which is designed to detect heroin or fentanyl. Unbelievably, the test gave a positive result. DOCCS employees also complained that protein powder and tea sold in prison commissaries produced false positives for amphetamines and THC. As a result, OIG advised DOCCS in August 2020, to “undertake an immediate review of the records of any incarcerated individual sanctioned on the basis of a positive Sirchie NARK II test result.” DOCCS then identified 3,112 such disciplinary records, reversing and expunging 704 charges, while also modifying guilty charges of another 2,068.
Like its earlier self-report, DOCCS made this one under state Executive Law Article 4-A, which requires state agencies to alert OIG to potential instances of corruption, fraud, criminal activity, conflicts of interest or abuse. OIG made numerous recommendations, all of which DOCCS implemented. Significantly, in April 2021, all drug testing operations were assigned to OSI. In October 2021, DOCCS contracted with NMS Labs to provide confirmatory testing of all presumptive positive results provided by NARK II tests. The lab testing revealed that OSI field testing is accurate 92% to 95% of the time. See: Investigation of the N.Y. State Dep’t of Corr. and Comm. Supervision Contraband Drug Testing Program, OIG (Nov. 2023).
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