Washington Department of Corrections officials have been using shoddy over-the-counter drug tests as grounds for harsh punishments that in some cases significantly delayed inmates’ release, a group of inmates argued in a class-action complaint filed Friday.
Clifton Bell was incarcerated at Airway Heights Corrections Center when his cell was searched and officers found a scrap piece of paper, which they tested for synthetic cannabinoids known as Spice.
They used a DetectaChem mobile test kit, which DOC said returned a “presumptive positive.”
Presumptive drug tests are often used as initial screens to identify if a drug is present. Most medical professionals will use a presumptive test as a screen because they are inexpensive but less accurate than a definitive test, which is required to confirm the presence of a drug.
These over-the-counter tests are known to be extremely inaccurate and are not allowed to be used for punishment in some states. Massachusetts outlawed the testing in its prison systems in 2021 as a result of a similar lawsuit, noting there’s around a 38% false positive rate, which is “less accurate than witchcraft, phrenology, or simply picking a number out of a hat,” according to the lawsuit.
The manufacturers of these types of tests are clear that they require confirmatory testing to be valid, argued Columbia Legal Services, the law firm bringing the complaint.
“DOC’s actions are unjust and unconstitutional,” said Alison Bilow, the team lead on the case for Columbia Legal Services. “DOC’s repeated and prolonged use of solitary confinement before and after any infraction hearings is inhumane. Prolonged solitary confinement is internationally recognized as a form of torture. DOC must be required to stop its use of these cheap tests to unfairly punish people, especially with its barbaric use of solitary confinement.”
The Department of Corrections declined to comment on the lawsuit.
The same day Bell’s cell was searched, he was placed in administrative segregation, a term used for solitary confinement. He was later issued an infraction and sanctioned 180 days without visitation, phone use, written correspondence or electronic communication, recreation and commissary access. He also lost 75 days of good conduct time.
When Bell appealed his infraction, he was denied confirmatory testing from a lab. He also complained that he had been unable to contact his attorney or the Office of Corrections Ombudsman because of his total loss of communication privileges.
His infraction was upheld. In the decision, Bell was told he did not have the right to outside lab testing.
A month after the first infraction, Bell was sent three greeting cards by a loved one. She used the company Moonpig to send the cards and never had contact with them herself.
When the cards arrived, staff used a different presumptive test, which came back positive, though neither the sender nor Bell had contact with the cards.
Bell was issued another infraction.
The sender complained to various DOC officials, showing evidence that they had never had contact with the cards. Officials eventually agreed to send them out for lab testing.
Those results showed no illegal substances were present. Despite the testing being done, the records were never placed in his DOC file.
His infraction was cleared, but by that point Bell had spent about four months in solitary confinement, according to the complaint.
The infractions led to Bell being reclassified and moved to Clallam Bay Corrections Center, a more restrictive facility.
Another plaintiff in the cases, Matthew Ross, had a box of paperwork confiscated from his cell about a month ago.
DOC swabbed two pieces of paper from the box, which came back “possibly” positive for Spice. Those papers were Ross’s childhood immunization records and high school transcript sent by his mother a year earlier.
Ross received an infraction that could have extended his time in prison by more than two months. When Ross’ attorneys complained to DOC about the issue on Sept. 6, the department released Ross from prison with little notice.
The group of inmates is asking DOC to stop the practice of issuing infractions based solely on presumptive positive tests, to remove existing infractions, and for damages.