New York’s prison system unfairly punished more than 2,000 prisoners after tests of suspected contraband substances falsely tested positive for drugs, according to a report released Thursday. In hundreds of cases, the prisoners had committed no offense, but the flawed results were used to put them in solitary confinement, halt family visits, or cancel parole hearings.
The report by Inspector General Lucy Lang found that state prison staff failed to confirm the test results with an outside lab. The manufacturer of the contraband screening drug tests, Sirchie Finger Print Laboratories, says in its instructions that the results from the drug tests should be treated as preliminary and unconfirmed.
The report also found that New York state prison staff failed to abide by protocols meant to prevent misidentifying contraband or cross-contaminating samples. The Sirchie NARK II contraband screening tests are used to detect synthetic cannabinoids and other types of drugs by putting substances into testing pouches. They sometimes cross-react with commonly used over-the-counter medications, as well as tea or protein powders sold within some state facilities, the report detailed.
The manufacturer said their tests are designed to confirm probable cause the substance was likely a member of a family of commonly used drugs, not a specific substance, according to the report.
The report recommended New York state prisons provide additional training to testing officers and require them to notify their supervisors when potential discrepancies arise. It also called for tracking drug test results through a central inventory of tests to monitor for any trends that may hint at future errors.
“This investigation and the subsequent policy changes and record expungements represent one step closer to ensuring the level of integrity we should all expect and demand from the State," Lang said in a statement.
New York's Department of Corrections and Community Supervision raised the issue concerning the drug tests with the state Inspector General in August 2020, almost a year after the NARK II contraband screening tests were phased in state correctional facilities. Based on findings during the investigation, prison officials eventually reversed and expunged 704 disciplinary infractions based on the positive test results, according to the report. Some prisoners may have had more than one charge. They also reduced guilty charges in another 2,068 infractions.
By 2021, the corrections department contracted an outside lab to provide confirmatory testing and also created a new position for a senior officer responsible to ensure drug testers follow appropriate instructions.
"While the detection and removal of these substances is imperative, it must be done with accuracy and fairness,” the department's Acting Commissioner Daniel F. Martuscello III said.
The department said that since the investigation, the department has since made improvements that align with the report's recommendations.
This isn’t the first time the department had issues with false positive drug test results.
A previous investigation by the state Inspector General in 2022 found that the state correctional agency ignored test instructions and disciplined inmates based on inaccurate results from another kind of drug screening test made by manufacturer Microgenics Corp.
Martin Garcia, a resident of Queens who served eight years at Fishkill Correctional Facility, was nearing the end of his sentence when, much to his shock, his Microgenics urine drug test came back positive.
“I was going home. Why would I get high? It didn’t add up,” said Garcia, 38. “But I was distraught because, I’m like, how do you fail a drug test? Is this medical?”
He raised the issue with a prison supervisor who acknowledged that something was wrong. He says the disciplinary charge was dismissed based on a bureaucratic technicality, not retesting.
In 2019, hundreds of New York prisoners filed a federal class action lawsuit against Microgenics Corp., claiming the manufacturer failed to ensure that its device produced accurate results.
The state’s contraband drug testing program requires two tests for suspected illegal substances. The first is a presumptive test, which then has to be sent to an outside lab for confirmation.
Even in the preliminary tests, prison staff regularly failed to carry out the tests in a reliable way, the report found. In one case, officers used pen caps and pocketknives to place suspected contraband into the drug test kits, instead of using a clean loading device. That could have led to contamination of the test sample, leading to a false positive.
During the almost five-year period in which the department used the NARK II tests in its facilities, there were more than 9,000 guilty dispositions for drug possession.
Despite restricting families from sending packages to inmates and routinely screening prisoners for drugs, New York’s Department of Corrections and Community Supervision continues to struggle to curb the flow of illegal drugs in their facilities, the report said.