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drug testing

Roadside drug tests

Maybe this isn’t such a good idea.

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A Houston police officer pulled Barry Demings over as he headed to work in Beaumont and plucked a spot of white powder off the floorboard of Demings’ year-old Ford Explorer.

Demings had just detailed the SUV – and wondered later if a speck of soap upended his life.

“I never even saw it,” he said, explaining how the officer dropped the speck into a small test kit and said “it came back for cocaine.”

Demings was charged with felony drug possession based on the results of the primitive test that costs about $2 and has been found to have a high error rate. He was told he could face a sentence as long as 30 years based on old prior convictions – no one mentioned waiting for a crime lab to verify the officer’s roadside result.

He insisted he was innocent but got scared and accepted a plea deal. He lost his job, his girlfriend and his Explorer. Upon release, he decided to leave Texas behind forever.

In 2015 – seven years later – the Harris County District Attorney’s Office notified him that Houston’s crime lab found no cocaine in the sample. He filed a writ of habeus corpus with the Texas Court of Criminal Appeals and was finally exonerated.

He is among 298 people convicted of drug possession even though crime lab tests later found no controlled substances in the samples, according to a far-reaching audit of drug cases by the Harris County District Attorney’s Office. So far, 131 of them, like Demings, have had their convictions overturned in cases that go back to 2004. About 100 other cases remain under review for potential dismissal.

In all 298 cases, prosecutors accepted both felony and misdemeanor plea deals before lab tests were performed. The $2 roadside tests, which officers use to help establish probable cause for an arrest, cannot be used at trial as evidence under Texas law.

[…]

The Harris County audit of drug possession convictions and related lab results going back to 2004 was launched in 2014 by Inger Chandler, an assistant district attorney in charge of the DA’s conviction integrity unit, after a reporter from the Austin American-Statesman called her about reversals of several drug convictions by the Court of Criminal Appeals.

The following year, Harris County District Attorney Devon Anderson changed her policies and directed prosecutors generally to stop accepting guilty pleas in felony drug cases before receiving lab reports confirming the evidence. Plea deals are still accepted prior to lab testing in misdemeanor drug cases, and in some felony cases in which jailed defendants can qualify for probation.

The forensic evidence problems uncovered by Chandler’s unit began around 2005, when Houston’s city crime lab – then overseen by HPD – lost several staff members and simultaneously saw a huge increase in drug cases, which created a backlog.

Lab officials implemented a triage system for drug testing with the DA’s office: Drug cases slated to go to trial would get processed first. For defendants who had accepted plea deals, the crime lab would later go back and test samples, often months or years after the guilty plea had been entered.

Chandler’s audit of wrongful convictions has been possible because the Houston Forensic Science Center, formerly HPD’s crime lab, preserved and tested the evidence even in the plea deal cases.

“We were keeping the evidence, and with the agreement with the District Attorney’s Office that we would continue to process even if it was pled,” said James Miller, manager of the center’s controlled substances section. “Because we both understood there was always the possibility that the substance may not actually be illegal.”

So far, prosecutors have identified and examined 456 flawed cases. Of those, 298 people had been convicted despite having no illegal controlled substances in their possession at all. In 29 of the 298 wrongful convictions, there had been no filing for relief because a defendant declined to pursue the case or faced other legal obstacles.

In other cases among the 456, the types or quantities of controlled substances were misidentified or there was too little evidence left to perform a confirmatory test.

About 78 percent of the 456 flawed cases came from the Houston Police Department, which still uses roadside tests that were developed in the 1970s. Chemicals in small vials turn colors when exposed to cocaine and other illegal drugs but can be easily misinterpreted by officers and can have high false positives, Miller and other experts said.

Emphasis mine. This article is a followup to a much longer ProPublica piece that explored the history and background of these roadside tests; another story, about the chemist who created these kits in 1973, is here. You should read them both – I don’t know about you, but I had no idea about any of this before now. We could have a debate about whether it’s reasonable for police officers to conduct roadside drug tests like this, but the high error rate for this test, which hasn’t been updated sine the 70s, makes it a particularly poor reason to hold people in jail or encourage them to plead out on a charge that is based on a crime that may never have existed. The point, again and again and again, is that there are way too many people in our jails who should not be there. The cost of this, both to the people who have been subjected to this and to us taxpayers who foot the bill for it, is unacceptable. When are we going to do something about it?

Drug testing for being poor

It’s back, and it’s as bad an idea as it ever was.

For years, GOP lawmakers have tried to make drug testing mandatory for some Texans who receive state welfare benefits, with little success.

But after making some headway in the Texas Senate in the 2013 legislative session, they hope to pick up where they left off — pushing bills they say keep taxpayer dollars from supporting people who abuse drugs.

Two bills filed by state Sen. Jane Nelson, R-Flower Mound, and state Rep. Ken King, R-Canadian, would subject people seeking cash assistance from the state’s welfare program — Temporary Assistance for Needy Families — to drug tests if their responses to a screening questionnaire suggested drug use.

The measures are sure to face opposition from some Democrats, backed by advocacy groups who say such drug testing might be unconstitutional.

[…]

Nelson said she’s confident the welfare drug-testing bill will pass this time around given the unanimous vote it received in the Senate and the “great deal of support” it picked up in the House.

“Taxpayer dollars should not be used to support a person’s drug habit,” Nelson said in a statement. “We need to ensure this program is putting individuals on a true path to self-sufficiency, and drugs are a barrier to independence.”

But opponents of the bill argue that there’s little evidence to prove that recipients of welfare use their cash assistance to purchase drugs, and that drug testing will do little to help families already in need. If a parent tests positive for drugs, the state would be required to report that individual to the Texas Department of Family and Protective Services.

“Our concerns are that the legislation doesn’t so much address the issue as punish families that are already going through a crisis of their own,” said Will Francis, director of government relations for the Texas chapter of the National Association of Social Workers.

See here for some background; the bills in question are SB54 and HB352. I’ll believe this is something other than an expression of official contempt for poor folks when someone proposes drug testing for the recipients of various incentive programs and the beneficiaries of the business tax cuts Greg Abbott is insisting on. I mean, fair is fair, and they’ll be getting a lot more dough than the TANF recipients will. Only-half-joking snark aside, drug testing for welfare recipients has no real policy justification for it. Harold Pollack explains.

What’s particularly strange about the drug-testing campaign is that if you’re trying to find people with substance-use disorders, your local sports bar, community college, or hospital ER would provide a more target-rich environment. Given the high rates of injury among intoxicated young adults, such efforts would arguably be a wiser use of public funds. Other measures such as increased alcohol taxes would also be valuable.

The drug testing of SNAP recipients is yet another ideological sideshow that disfigures substance-abuse policy. It falsely implies that substance use disorders are a widespread cause of welfare dependence. It also implies, again falsely, that these disorders are highly concentrated among recipients of public aid.

Using 2011 data from the National Survey of Drug Use and Health (NSDUH), we looked at the behaviors and circumstances of adults ages 18-64 whose households received SNAP.[i]. We examined whether respondents had used some illicit substance during the previous month or year. We then looked at whether they met screening criteria for abuse or dependence on alcohol or illicit drugs. These are the people who would be referred for treatment by mandatory drug testing.

The basic pattern is shown in Figure 1, which compares SNAP recipients ages 18-64 (the blue bars) with non-recipients (red bars) on various measures of substance use and actual use disorders. The green bars then show the additional risk associated with SNAP receipt, adjusting for gender, age, education, race/ethnicity, marital status, and the number of minor children in the home.[ii] Because SNAP recipients are poorer, less-educated, and younger than non-recipients, the adjusted risk associated with SNAP receipt is noticeably smaller than the unadjusted differences on virtually every measure.

Sure enough, SNAP recipients are somewhat more likely than others to use or misuse illicit substances. About 24 percent of SNAP recipients and 16 percent of those who don’t get SNAP have used at least one illicit substance in the past year. This drops to 13.1 percent for SNAP recipients and 7.5 percent for non-recipients if one excludes marijuana.

Note, however, that the actual prevalence of illicit substance use disorders remains quite low—only about 5.3 percent among SNAP recipients who are only about 1.7 percentage-points more likely to have such disorders than comparable non-recipients.

And if one excludes marijuana, then abuse or dependence of other illicit substances is rare within the SNAP population. By far the most common substance use disorders among SNAP recipients (and among the general population) arise from alcohol use—behaviors generally left undetected by drug-testing.

On every measure we examine, SNAP recipients are only slightly more likely than non-recipients to display substance use disorders. Yet the absolute risks associated with SNAP receipt are quite small. And some obvious socio-demographic subgroups display much higher prevalence of substance use disorders than SNAP recipients do.

I strongly suspect the reason for these bills, beyond the contempt being expressed, is the belief/hope that some number of folks who would qualify for this benefit will not bother to apply out of fear or shame, and that this will save a few bucks. I bet we’d save even more under my drug testing proposal.

Probation and drug testing update

Sounds like good news.

Late last summer, the director of the Harris County Community Supervision and Corrections Department resigned, and the Harris County District Attorney’s office said it would stop using the agency’s drug tests as evidence after revelations that its overburdened drug-testing program had led to the wrongful jailing of some probationers and people awaiting trial based on false positives.

Director Teresa May, appointed in February, is being praised for addressing those missteps and bringing a pioneering and transparent approach to the once embattled agency.

“She’s very open and I’m satisfied that, at least for right now, that those problems have been corrected,” said longtime state District Court Judge Denise Collins, who called for the department’s previous chief to step down last year.

Collins, a member of the committee that vetted and recommended May, said she “is so innovative and has such great perspective on the entire department because there are some changes that need to be made, and she has kept her word with what she said she was going to do.”

Since March, the department has cut its drug testing volume in half after May hired a consultant who found that many probationers had for years tested negative on hundreds of tests. The abnormally high test volume was a big part of the problems revealed last year, May said.

May, 52, came from Dallas County’s probation department, where she helped implement a model that significantly reduced the number of offenders who ended up behind bars after their probations were revoked. The result was a lower jail population and a savings of millions of dollars.

See here for the background. The model May helped implement in Dallas is basically a risk assessment model that differentiates between probationers that need close supervision and drug testing, and those that will do better with minimal disruption to their daily lives. The idea is to design it for success and not failure, as Sen. John Whitmire characterizes it, with “success” meaning fewer people being put in jail for probation violations. One of the reasons why we had such problems with jail overcrowding in the past is that it made more sense to pick jail time over probation because the terms of probation were so onerous, and so likely to wind up with you in the slammer anyway for a violation of those terms. Needless to say, this is something we want to avoid going forward. One key to this is getting the judges to buy into this, and that seems to be happening as well. Kudos to Ms. May for her work so far.

It’s drug testing all the way down

Looks like the urinalysis industry in this state is going to get a big stimulus package next year, at least if the Republicans get their way.

As top state leaders push to drug-test some Texans seeking jobless benefits and financial assistance, critics suggest the initiative would single out the powerless and hurt their children.

It’s a battle that has been played out in other states – most prominently in Florida, where a drug-testing program for welfare applicants was stalled by a constitutional challenge saying it amounted to an unreasonable search.

Backers of Texas’ proposal cite its narrow scope, since a leading bill targeting welfare recipients would limit testing to applicants deemed high-risk for drug use. Those who failed the test and lost benefits could reapply in a year or, if they underwent drug treatment, six months.

“The reality is, no one wants to see any Texan using drugs,” said state Rep. Sylvester Turner, D-Houston. But he’s a critic of the proposal, contending the poor and jobless are being singled out “because of politics, and not because of reasonable, rational policy.”

“Whether you are receiving governmental assistance on welfare, whether you are a student receiving a Texas grant, whether you are an executive, a CEO, that’s up here asking for money from the Enterprise Fund – I don’t want to see anybody using drugs inappropriately. Now the question for me is why are we singling out this population?” he asked.

I think we all know the answer to that question. This is a no-brainer for Rick Perry et al – it plays well to the cheap seats, it sounds like something that would save money, and who’s going to stand against them on behalf of drug users? You can’t ask for much more than that.

Maurice Emsellem, policy co-director for the National Employment Law Project, said federal legislation allows testing only for claimants terminated from their most recent employment due to unlawful use of controlled substances, or those for whom suitable work is only available in an occupation that regularly drug tests.

The U.S. Department of Labor is developing regulations to allow states to implement these provisions. It appears the first would be a tough one in Texas, which restricts benefits to those who have lost a job through no fault of their own.

Andy Hogue, spokesman for Texas Workforce Commissioner Tom Pauken, who supports such drug testing, said it’s estimated the cost of testing for jobless applications would be about $12.1 million over five years. He said it’s projected the stricter requirements would save the Unemployment Insurance program in Texas $20.7 million in that period.

I seriously doubt we’ll see the kind of savings that Andy Hogue projects. I admit I have no evidence to back up this assertion, I just have no reason to trust such a self-serving projection. If this gets passed by the Lege and doesn’t get blocked by the courts, I’ll be very interested to see how that projection pans out. Bear in mind, of course, that four million bucks a year is chump change in an $80 billion budget – it’s not much more than Rick Perry spends on travel and security. Again, it’s all about priorities being out of whack.

On peeing in a cup

Another solution in search of a problem from the Republican leadership.

Out of the more than 250 bills filed Monday, the first possible day to file legislation for the 83rd session, one measure — concerning drug testing for welfare applicants — is already drawing the support of the state’s top lawmakers and the criticism of civil liberties advocates.

Senate Bill 11 would require applicants to the Texas Temporary Assistance for Needy Families program to undergo a drug test. If applicants fail the test, they would not be eligible to apply again for a full year, unless they attended a substance abuse treatment program. The bill was written by state Sen. Jane Nelson, R-Flower Mound, and several other Republican lawmakers.

“This will help prevent tax dollars from going into the pockets of drug abusers,” Gov. Rick Perry said Tuesday at a news conference. He said that the goal of the bill is to “empower every Texan to reach their potential,” because “being on drugs makes it harder to begin the journey to independence.”

“It is a legitimate function of government to help people that are not able to help themselves,” added Lt. Gov. David Dewhurst. He said that because “virtually every” business he has encountered uses random drug testing on employees, it’s a good idea for the state and will lead to reduced unemployment by proving to employers that the people they are hiring have been certified by the state as drug-free.

“We owe it to all Texans to structure our welfare and unemployment programs in a way that guarantees that recipients are serious about getting back to work,” he said.

“This is not all about punishment,” Perry added. “This is also an incentive to get people off of these drugs.”

But critics of the bill say the bill is needlessly punitive and will mainly harm innocent children, whose parents are found to have even a minor amount of drugs. “The purpose of TANF was really to help children,” said Terri Burke, executive director of the American Civil Liberties Union in Texas. “If you don’t give the moms the money, then the children lose out.”

She pointed specifically to the bill’s provision that would require the Texas Health and Human Services Commission to report applicants with drug abuse problems to Child Protective Services. “Now we’re going to take the child of a parent who has smoked a couple of joints and give them to CPS,” she said. “If there’s a genuine concern about drug abuse, let’s do something about it. There’s no evidence that poor people abuse drugs more than other folks, but we keep coming up with bills that target poor people.”

“Adding insult to injury,” Jim Harrington, director of the Texas Civil Rights Project, said in a press release, “is that Perry would pay for the drug testing out of the very TANF funds that should go to provide assistance to people. In other words, he’s taking about $350,000 worth food and assistance from all families from the general TANF grant just to try to find a few violators. This is simply callous and perverse.”

I don’t have much to say that hasn’t already been said by Lisa Falkenberg, Burka, Jason Stanford, BOR, Stace, or EoW. I’m particularly fond of Rep. Joe Deshotel’s response, noted in that BOR post, which was a call to add a drug test requirement to the application to run for state office in Texas. Lord knows, for the amount we spend on Rick Perry’s travel detail, we ought to get some assurance he’s not taking the opportunity to toke up while out on the road.

All other concerns aside, the bottom line is that this has been done in other states, most notably Florida, and there were no savings to be had and very few users getting caught. Burka astutely noted the parallel to the failed program of steroid testing for high school athletes, another expensive way for the state to (if you’ll pardon the expression) piss its money away chasing something that wasn’t there in the first place. For a gang that likes to rhapsodize about getting government out of people’s lives, they sure sing a different tune when it comes to the lives of people they don’t like.

Harris County probation director resigns

Some fairly big news that has nothing to do with hurricanes, the GOP convention, or the Voting Rights Act.

Paul Becker, the director of Harris County’s probation department, resigned Wednesday in the wake of allegations the department mismanaged thousands of drug tests used to decide the fates of probationers and suspects out on bail while awaiting trial.

State District Judge Denise Collins called for Becker’s resignation Monday after listening to hours of testimony about the troubled department during a probation revocation hearing.

Some of the allegations included testimony that false positive results from drug tests, which were reported to judges, had sent probationers to jail.

The Chron has several related stories that give the background on this. I’m going to leave the analysis to Grits, who notes that this isn’t some new thing.

Back in 2005, Grits reported based on a consultant’s evaluation that Harris County had been told that “Urinalysis requirements in particular, while popular among prosecutors and judges, take up a huge amount of staff time and cause delays throughout the system.” The consultant, Justice Management Institute, specifically recommended that “The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered,” but that never happened. So judges knew the department was overloaded by too many drug testing orders but willfully ignored the problem. That’s not Mr. Becker’s fault.

In some ways I feel sorry for Becker, who was in a damned if you do, damned if you don’t situation. Probation departments are underfunded, relying mainly on probationer fees and a relatively small stipend from the state. Plus, in Harris they’ve been asked to provide urinalysis and supervision not just for people on probation but often for defendants out on bail pretrial. The system has grown so large and unwieldy that, to me, these types of errors are regrettable but unsurprising, not that that does wrongly jailed defendants any good. Mr. Becker may have fallen on his sword, but by no means are he and his staff the only ones to blame.

This episode also reminds us that people who’ve spent decades in prison on false rape or murder convictions before being freed by DNA aren’t the only or even the most common category of innocent defendants jailed based on false accusations. These more workaday, low-level cases have just as much room for mistakes, but are also much more easily swept under the rug. Most defendants are indigent and can’t afford to mount the type of full-court press that resulted in Judge Collins’ findings this week. It’s a great mitzvah that attorney Lisa Andrews did so on behalf of her client, but if defense attorneys in Harris County had been aggressively confronting false forensic evidence against their clients on an ongoing basis, maybe the problems would have been identified and rectified long ago.

I don’t suppose I have to add that this is yet another contributor to jail overcrowding? If we want to have such an expansive drug-testing program as part of our probationary system, we need to be willing to pay for a system that can handle the demand. And if we don’t want to pay that much, we need to scale the system back to something we can afford. Not a hard concept, and I agree with Grits that it’s not really the program director’s fault for being dealt a lousy hand. It’s up to us to decide what we want.

Armstrong gives up the fight against USADA

Wow.

Lance Armstrong

With stunning swiftness, the U.S. Anti-Doping Agency said Thursday night it will strip Lance Armstrong of his unprecedented seven Tour de France titles after he dropped his fight against drug charges that threatened his legacy as one of the greatest cyclists of all time.

Travis Tygart, USADA’s chief executive, said Armstrong would also be hit with a lifetime ban on Friday. Under the World Anti-Doping Code, he could lose other awards, event titles and cash earnings while the International Olympic Committee might look at the bronze medal he won in the 2000 Games.

Armstrong, who retired last year, effectively dropped his fight by declining to enter USADA’s arbitration process — his last option — because he said he was weary of fighting accusations that have dogged him for years. He has consistently pointed to the hundreds of drug tests he passed as proof of his innocence while piling up Tour titles from 1999 to 2005.

“There comes a point in every man’s life when he has to say, ‘Enough is enough.’ For me, that time is now,” Armstrong said. He called the USADA investigation an “unconstitutional witch hunt.”

“I have been dealing with claims that I cheated and had an unfair advantage in winning my seven Tours since 1999,” he said. “The toll this has taken on my family and my work for our foundation and on me leads me to where I am today — finished with this nonsense.”

USADA reacted quickly and treated Armstrong’s decision as an admission of guilt, hanging the label of drug cheat on an athlete who was a hero to thousands for overcoming life-threatening testicular cancer and for his foundation’s support for cancer research.

“It is a sad day for all of us who love sport and athletes,” Tygart said. “It’s a heartbreaking example of win at all costs overtaking the fair and safe option. There’s no success in cheating to win.”

Tygart said the agency had the power to strip the Tour titles, though Armstrong disputed that.

You can read Armstrong’s statement here, and his lawyer’s letter to the USADA here. The funny thing about this is that if USADA does strip Armstrong of his titles, there may be no one else who can be awarded them.

The Tour has taken away titles from two riders: Floyd Landis in 2006 and Alberto Contador in 2010. Each tested positive for a banned substance while riding to his Tour victory.

Landis, a former teammate of Armstrong, iniataed USADA’s investigation of Armstrong.

If Armstrong’s titles are taken away it is unclear who would be declared the winner. Most of the cyclists behind Armstrong on the podium were suspended for using drugs including Jan Ullrich, Ivan Basso and Alexander Vinokourov.

Here’s a radical idea: Why even bother testing? If they’re all doping anyway, then no one is really getting an advantage, and they playing field is sufficiently level. Well, it would have been level for everyone except Armstrong himself, who has passed every drug test given to him, and he managed to win anyway. I don’t really follow cycling, and I never paid that much attention to the Tour de France, even when Armstrong was dominating it. I have at best a surface-level knowledge of the history here. From that perspective, I have no idea why the USADA has been going after Armstrong so hard. I don’t get it. Be that as it may, it looks like the USADA will finally get what it’s been after for all these years. Mission accomplished, I guess.