The War on Drugs has never really been about eradicating illegal drugs. It’s been about putting up numbers: seizures, busts, indictments, convictions. A steady flow of illegal drugs into the country ensures a steady flow of tax dollars into hundreds of government agencies. Officials talk a lot about taking down cartels, but they spend more time grabbing cash from travelers and anything they can from someone who’s got nothing more on them than quantities that could be generously called “personal use.”
Making law enforcement’s Drug War “efforts” easier and a whole lot cheaper are field drug tests: notoriously unreliable chemical cocktails that are worth every cent of $2/per they pay for them. In an earlier story about these tests, two New York Times journalists detailed Amy Albritton’s experience. Albritton spent three weeks in jail after a false positive from a field drug test determined that the caffeine-and-aspirin “crumb” (roughly the size of a “grain of salt” according to the lab test) was crack cocaine. For $2, Albritton lost most of her life. She served her short sentence — one she only obtained by pleading guilty — and now faces a future where her permanent record shows she’s a convicted felon.
ProPublica is also tackling the issue of cheap, unreliable field tests — ones deemed just reliable enough to cost people their lives. The Las Vegas Police Department’s own crime lab found the field tests used by officers to be so inaccurate they actually lobbied to have their use discontinued.
In a 2014 report that Las Vegas police submitted to the U.S. Department of Justice under the terms of a federal grant, the lab detailed how the kits produced false positives. Legal substances sometimes create the same colors as illegal drugs. Officers conducting the tests, lab officials acknowledged, misinterpreted results. New technology was available — and clearly needed to protect against wrongful convictions.
The lab’s opinion didn’t matter. Cops and prosecutors loved the field tests. It ensured a steady flow of busts and convictions.
Yet to this day, the kits remain in everyday use in Las Vegas. In 2015, the police department made some 5,000 arrests for drug offenses, and the local courts churned out 4,600 drug convictions, nearly three-quarters of them relying on field test results, according to an analysis of police and court data. Indeed, the department has expanded the use of the kits, adding heroin to the list of illegal drugs the tests can be used to detect.
And while the drug lab that bats cleanup for field tests found them unreliable, these findings have never been passed on to the people who matter: judges. Not that it appears to matter. ProPublica brought its findings to the chief judge of the Las Vegas District Court only to receive a shrug in response.
“These are tests that have been accepted for years,” said Bonaventure, who became a judge in 2004. “They’re not being challenged.”
In other words, the police have told me they’re reliable so they must be reliable. Otherwise, why would so many people plead guilty to possession?
Perhaps it’s because someone pleading out to avoid a longer prison sentence is engaged in arbitrage — weighing the potential years they could be facing if their bid fails against a quicker in-and-out local jail sentence that makes the immediate future look a bit brighter than the alternative.
Phil Kohn, chief of the Las Vegas public defender’s office, acknowledged that the prospect of serious prison time has the effect of strong-arming pleas.
“If you’re wondering why the public defender is pleading these cases, it’s because the alternative is horrific,” Kohn said.
In Las Vegas, only eight of the 4,633 drug convictions were the result of a trial. The rest were plea deals. And that’s where the reliance of faulty field tests turns into the blackest of human comedies. If someone pleads guilty, the evidence that possibly isn’t simply vanishes.
While DOJ standards for the last 40 years have called for qualified labs to re-examine all field test results, the agency has made no effort to insist that happens or to install other protections against mistakes and the wrongful convictions that could result.
And the destruction of field tests after guilty pleas is hardly limited to Las Vegas. In some jurisdictions, defendants accepting guilty pleas agree as a term of the arrangement that the evidence against them will be destroyed. In others, the alleged evidence is simply discarded over time. In a 2013 federal survey of local and state crime labs, 62 percent reported that police agencies don’t submit suspected drugs when a defendant pleads guilty early on in the process.
To make matters worse, ProPublica found public defenders haven’t done much to challenge the use of unreliable fields tests. A 2000 report covering the Las Vegas public defender’s office showed some lawyers hadn’t filed a motion to suppress “in over five years.” While the quality of representation has gotten better over the years, follow-up reports still found a dearth of aggressive defense. Of course, like almost every other public defender’s office in the US, Las Vegas’s is overworked and underfunded, with each attorney saddled with 200+ active cases at any given time.
Adding to the plea bargain problem (and exacerbating the troubling reliance on faulty field tests) are local laws, which are far harsher than federal drug laws. It only takes four grams of an alleged illegal substance to bring trafficking charges. At the federal level, it takes anywhere from 50-500 grams (depending on the substance) to trigger trafficking charges and their lengthier potential sentences.
Even though the Las Vegas lab had expressed concern about the fallibility of field drug tests, it never did anything to determine an error rate. When concerns were raised again about these cheap but error-prone tests, the lab’s main concern wasn’t about innocent people being jailed, but that it did not have the capacity to perform testing on all seized substances.
But judges and cops will keep believing field drug tests are reliable. And why wouldn’t they? A demonstration in 2015 pretty much proved them infallible. But the test was rigged. First off, the demonstration involved an actual scientist, rather than a more error-prone officer. Second, the scientist demonstrating the reliability of the tests knew beforehand the substance he was “testing” was actually heroin… thanks to a lab test. The demonstration was presented as being tests of seized, but unknown, substances. As ProPublica points out, no false positives resulted because there was no possible way for the demonstrator to do so.
Meanwhile, the Las Vegas Police has upped the ante on a broken testing system, adding heroin to the list of substances it supposedly can detect using a $2 test. And nearly every crumb of undetermined origin will just add another case to overloaded public defenders. But the important thing is that it will add another drug bust — and quite possibly another successful prosecution — to Las Vegas drug warriors’ stats. And that’s all that really matters.