‘Less Accurate than Witchcraft’: Class Action Claims Mass. Dept. of Correction Uses Faulty Drug Tests on Legal Inmate Mail

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A proposed class action alleges the Massachusetts Department of Correction (DOC) has used fake drug tests on legal mail to both interfere with incarcerated individuals’ right to communicate with their counsel and punish them without due process. 

The 29-page complaint charges that the Mass. DOC uses the Narcotics Reagent Analysis Kit (NARK) II-brand tests, which are made and sold by defendants Sirchie Acquisition Company, LLC and Premier Biotech and designed to detect synthetic cannabinoids, to test for drugs sprayed on paper. The case scathes that although these tests are “less accurate than witchcraft, phrenology, or simply picking a number out of a hat,” and create false positives “almost 80% of the time, according to one DOC official’s estimate,” they produce very real consequences for proposed class members.

Once a false positive has been flagged, the individual whose mail is at issue is placed between a rock and a hard place, according to the lawsuit: 

“Once a false positive has been generated, the DOC presents the incarcerated person with an untenable dilemma: they can either accept responsibility for a crime they did not commit and suffer the punishment; or they can request a laboratory test—but be subjected to solitary confinement and loss of privileges while DOC waits for the test results, which can often take months.” 

Moreover, the DOC, the case alleges, threatens to impose “significant fines and expenses” on anyone whose lab testing comes back positive, including by forcing the person to pay for the testing. This further coerces incarcerated individuals to “confess[] to crimes they did not commit in order to escape the threat of crushing punishment,” the lawsuit says. 

“Many incarcerated people are now refusing legal mail—their main form of communication with their (often Court-appointed) counsel during the pandemic—rather than being subjected to this arbitrary and unconstitutional process,” the complaint says, noting that legal mail, as part of the defendants’ testing process, is often cut into pieces such that it is sometimes rendered unreadable. 

For their part, Sirchie and Premier Biotech, the lawsuit alleges, falsely promote their drug tests as accurate “despite a staggering rate of false positives” and despite knowing the Mass. DOC uses them to “test” legal mail and improperly punish incarcerated individuals, the case says. Per the filing, two of the lawsuit’s four plaintiffs are individuals incarcerated by the Mass. DOC and falsely accused and punished on the basis of the allegedly faulty drug tests, while the other two plaintiffs are attorneys who allege they and other legal professionals across the state were falsely accused of “trying to smuggle drugs into the prison on their legal mail.” 

According to the lawsuit, each of the field drug tests in the Sirchie NARK II product line is “fundamentally flawed,” and none can reliably detect the drugs the company purports they can test for. Per the suit, the particular NARK II test used by the Mass. DOC yields false positives at such a high rate that its results are “worse than random,” a deficiency the case alleges even Mass. DOC employees are well aware of. 

The lawsuit contends that a reason as to the extremely high false positive rate of the NARK II drug tests is that Sirchie “provides incomplete, inadequate, and misleading instructions, warnings, and training with the tests.” From the suit:

“Sirchie instructs users that yellow or orange coloration on the paper testing strip included with the NARK 20023 tests indicates a positive result. Sirchie’s instructions suggest that any yellow or orange coloration indicates a positive result, even though such discoloration can be caused by innocuous factors that have nothing to do with the presence of drugs. 

For instance, the highly acidic chemicals used in the NARK 20023 test routinely turn paper light yellow or tan, regardless of whether synthetic cannabinoids are present in or on the paper. In fact, the test is likely to discolor paper even where it is completely devoid of foreign chemical compounds, causing the strips to display colors consistent with positive results. Sirchie fails to warn users of this risk. Nor does Sirchie warn its users that compounds present in commercially available papers, printers, and inks frequently cause discoloration, creating erroneous ‘positive’ results.” 

The suit goes on to claim that the Mass. DOC, in response to a public records request, was unable to provide any documents that suggest it monitors the false positive rates reportedly associated with any of Sirchie’s drug tests. 

The plaintiffs allege the Mass. DOC’s reliance on Sirchie’s tests on “suspicious” legal mail and false positives to not only punish but take any action at all against incarcerated people violates the due process clause of the Massachusetts Constitution. 

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