The complaint likens the accuracy of the tests to “witchcraft, phrenology or simply picking a number out of a hat.”

Anyone who has known the Massachusetts Department of Correction (DOC) first-hand or through a friend or family member wouldn’t be surprised to learn about people incarcerated in the Commonwealth experiencing the most horrific conditions imaginable. Along with the Boston Institute for Nonprofit Journalism (BINJ), we have documented various abuses extensively, from cruel and unusual treatment of LGBTQ prisoners to the surveillance of visitors.

With that said, it’s nevertheless shocking to learn that the state is spending money on drug-testing people behind bars, and to read some of the details pertaining to a lawsuit recently filed against the Massachusetts Department of Correction “over its alleged use of a defective and faulty drug test leading to repeated false accusations against defense lawyers and harsh penalties against the incarcerated—who have stopped communicating with their attorneys during the pandemic for fear of the drug test.”

According a media statement from BraunHagey & Borden and Justice Catalyst Law, a nonprofit law firm “dedicated to securing redress to those denied equal access to justice” representing the plaintiffs, the “suit alleges that the test, manufactured by Sirchie Acquisition Company, LLC, claims to detect synthetic cannabinoids, but is fooled by innocuous chemicals present in most commercial paper, such as the letters and envelopes that many prisoners receive from their attorneys.”

The statement continued:

Criminal defense attorneys and people incarcerated in Massachusetts filed a lawsuit against the Massachusetts Department of Corrections (DOC) seeking to stop the DOC’s use of a defective and faulty drug test manufactured by Sirchie Acquisition Company, LLC. The DOC has been using the faulty test on legal mail sent into DOC facilities – which, during the pandemic, frequently has been the only means for attorneys to communicate with their clients – and it has resulted in a slew of false positive results.

As detailed in the complaint, the class of legal professionals, including the cadre of dedicated public defenders directly employed by the Commonwealth, have been subjected by the DOC to systemic and repeated false accusations and slander. Worse, the class of incarcerated persons were subject to harsh punishment, levied outrageous fines, and deprived of family visits—all based purely on the repeated false positives generated by these defective Sirchie tests.

The Sirchie tests claim to detect synthetic cannabinoids, but according to the complaint, the test is fooled by innocuous chemicals present in most commercial paper, such as the letters and envelopes that many prisoners receive from their attorneys. The complaint likens the accuracy of the tests to “witchcraft, phrenology or simply picking a number out of a hat.” One DOC employee estimated that these tests have a false positive rate of up to 80%.

Once a test comes back positive, the DOC then gives a prisoner a choice: 1) Plead guilty to a false offense and accept punishment or 2) tell the truth and be subjected to solitary confinement and loss of privileges for months, while the DOC does a proper laboratory test. If the wrongly accused person contests the punishment and tests results, asking that the results be verified through a proper laboratory test, the DOC adds on penalties, including significant fines and expenses and paying for both the cost of the proper laboratory test and tests into the future.

Because of the frequency of the false positive results from the Sirchie tests used and relied upon by the DOC across the state, incarcerated people fear communicating with even their court-appointed counsels and have taken to refusing their legal mail—their main form of communication during the pandemic—rather than risking punishment by the DOC based on these false positive results. As set forth in the complaint, the DOC’s use of these test interferes with core constitutional rights, including the right to counsel and fundamental due process.  In particular, the DOC continues to punish incarcerated people solely on the basis that they were named as the recipient of legal mail that failed these faulty Sirchie tests, although the DOC well knows that the incarcerated person did not and could not have participated in creating or sending the allegedly tainted legal mail.

In addition to the Massachusetts Department of Correction, the suit also names Sirchie Acquisition Company, LLC and its sales agent Premier Biotech, Inc as defendants. 

“We brought this lawsuit to protect disempowered people incarcerated by the DOC from the unconscionable decision to use these tests in the face of overwhelming evidence of their inaccuracy,” said Ellen Leonida, a partner at BraunHagey & Borden. “We also intend to hold the drug companies liable for knowingly profiting from the misuse of these tests and the misery they are causing.”

To be continued …