A current and a former inmate today sued the Massachusetts Department of Corrections over the system it uses to check incoming mail for marijuana, which they charge is so wildly inaccurate some inmates are now refusing mail for fear it might test positive and send them into solitary if they even try to appeal.
In a lawsuit filed today in Suffolk Superior Court, the two say the inaccuracy alone is reason for a judge to order an immediate halt to the state's use of the system but add that the whole process raises Constitutional due-process issues because a positive reading could mean punishment for inmates who don't get a chance to contest the findings.
Defendant Massachusetts Department of Correction (the “DOC”) uses fake drug tests on legal mail to interfere with incarcerated people’s right to communicate with their counsel and punish them without due process. One test, the NARK 20023, purports to be able to detect synthetic cannabinoids. When used to test for drugs sprayed on paper (such as legal mail), however, the NARK 20023 is less accurate than witchcraft, phrenology, or simply picking a number out of a hat. Interactions with innocuous chemicals commonly found in paper frequently create false positives - almost 80% of the time, according to one DOC official’s estimate.
The suit was filed as a class action on behalf of all Massachusetts inmates by Julian Green, serving a life sentence for a 2007 murder in Hyannis, and Eugene Ivey, who was sentenced to life for a 1998 Brockton murder, when he was 17, but who was granted parole to start this coming February. Both say they were falsely accused and punished for alleged marijuana-laced mail after their incoming mail tested positive for cannabinoids.
Their legal documents were written and filed by three law firms - Todd & Weld of Boston, Justice Catalyst Law of New York, which focuses on social-justice cases and BraunHagey & Borden of San Francisco, which has a project focusing on creating "systemic change for the underserved and unrepresented."
In a memorandum supporting their request for an immediate halt to the use of the test while the case continues, they further detail the issues:
The field test has an error rate that grossly exceeds the DOC's requirement of less than 0.05% - based on the DOC's own records, the NARK 20023 has generated at least 122 false positive results in a period of less than two years. Despite its egregious rate of false positives, the DOC insists on using the NARK 20023 on incoming legal mail. If the test returns a "positive" result, the DOC imposes immediate, severe penalties. It then gives the recipient the choice of either admitting to a crime they did not commit for a reduced penalty or losing all their privileges and waiting in solitary confinement until such time as the DOC does a proper laboratory test, which can take months. Knowledge of this practice has spread throughout the DOC and incarcerated people are refusing to accept legal mail for fear of being falsely accused and punished.
Inflicting punishment based on this flawed test serves no purpose. The DOC retains control over the mail and the recipient during the time it takes to do an accurate test, eliminating any danger that contraband could get through or a wrongdoer could evade liability. The DOC's practice violates the due process rights and rights to counsel of the people it punishes and chills communications between all incarcerated people and their attorneys. It is inflicting immediate and irreparable injuries not only to people incarcerated at DOC facilities, but to the very integrity of the criminal justice system itself.
Absent relief from the Court, Plaintiffs and other incarcerated people will suffer irreparable injury. As a result of the DOC’s arbitrary field test - used only on legal mail - Plaintiffs (and other similarly situated individuals) are chilled from obtaining advice of counsel. ... Further, the punishments DOC is meting out based on its inaccurate test, alone, create irreparable harm. At least 122 people have spent weeks, if not months, in solitary confinement - a form of punishment that has been recognized as a form of torture by the United Nations - based on “positive” tests that DOC now admits were incorrect.1 In solitary confinement people also are deprived of visits from family, are forced to interrupt their education, and lose their prison job - irreparable losses that frustrate rehabilitation.