by Anthony W. Accurso
The Office of the Inspector General (OIG) for the State of New York released a report on January 4, 2022, concluding its “Investigation of New York State Department of Corrections and Community Supervision [DOCCS] Incarcerated Individual Drug Testing Program,” following reports that DOCCS punished 1,600 prisoners for false-positive results obtained with a glitchy drug test.
DOCCS contracted for the test kits with Microgenics starting in January 2019, but then abandoned their use a mere eight months later, after numerous complaints prompted a reliability review of the kits. In June 2019, Prisoners’ Legal Services of New York brought to DOCCS’ attention the cases of four prisoners who said they tested positive despite not using drugs. This prompted the department to send six positive Microgenics tests out to another company for retesting, five of which came back negative for drugs.
In a rare moment of accountability, DOCCS took its findings to OIG, ceased using the faulty tests, and eventually expunged over 2,500 disciplinary reports for the 1,600 prisoners who were affected.
Between the OIG report and subsequent lawsuits filed by affected prisoners, several facts have come to light regarding failures of both test kits and policies regarding their use.
After deployment began, DOCCS observed an immediate upward spike in positive tests, yet the department failed to respond to widespread concerns among prisoners, their families, and advocates, OIG determined.
It also found that DOCCS “did not perform due diligence when contracting with Microgenics” and then failed “to understand that such tests were merely preliminary screening tests.” Though company materials state that a positive test result should be confirmed with a second, more sensitive test, DOCCS policy allowed staff simply to carry out the test a second time with another kit, often confirming the false positive.
Microgenics also appears to have acted improperly, with one of its sales representatives allegedly exerting undue influence over the policy development process, according to OIG, resulting in higher usage of the firm’s kits instead of getting confirmation results through a different vendor. The company also failed to disclose to DOCCS that over-the-counter antacids and the sweetener Stevia could potentially lead to false positives.
In addition to a variety of privilege restrictions, DOCCS placed 140 prisoners in solitary confinement as a result of false-positive tests. The department stated it has adopted all of the recommendations made by OIG, including “eliminat[ing] segregated confinement as a potential sanction for Drug Use disciplinary violations.”
In response to the report, DOCCS implemented remedial actions “necessary to make whole each incarcerated individual potentially affected,” which included “immediate release from segregated confinement; de novo review with the Board of Parole; reassessment of open date for release; reinstatement to temporary work release; return to the Comprehensive Alcohol and Substance Abuse Treatment program; return to college or other academic/vocational programming; reinstatement to sex offender treatment; removal of visitation restrictions and sanctions; reassessment of Family Reunion Program applications; payment of lost incarcerated individual wages; and return to an area-of-preference facility.”
But nothing thus far has mitigated a slew of lawsuits filed by prisoners affected by the faulty test kits, plus another by DOCCS against Microgenics for breach of contract.
Karen L. Murtagh, executive director of Prisoners’ Legal Services of New York, commented that “[t]he psychological and physical damage caused by solitary confinement, the loss of family visitation, the lack of proper programming, lost work-release and educational opportunities, all of which help combat recidivism, adds to the ledger for which we as a society need to take account.”
Additional source: New York Times
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