> For those who get arrested due to colorimetric testing, “over 90% of people are taking a plea deal because they can’t afford to remain in jail and wait six months for laboratory tests,” Walsh said.
This touches on a question to which I'd love to know the answer: what would happen if those charged with crimes could not waive their right to a speedy trial and plea deals were disallowed?
For the accused: those with low resources would go to trial with less time to mount a defense. Disallowing plea deals would remove the possibility of coercing lower-severity conviction pleas.
For the prosecutor: less time to mount a prosecution.
Benefits to courts and jails: much cleaner and more open dockets, jails cleared out much quicker.
Presumably this would lead to more rational charges - fewer charges and charges that were higher priority and easier to prove.
In the short term, prosecutors would have no choice but to drop a huge number of charges as they would be overwhelmed.
EDIT: here's an interesting data point where it looks like NYC passed a law that required prosecutors to have all evidence ready prior to the speedy trial date. It seems like it drove a lot of dismissals of low level stuff:
It's obviously a problem with efficiency, resources and incentives. Earlier court dates is reshuffling deck chairs on the titanic, basically after the ship sank.
Since the problem is about labs and technology, and that the state labs declared themselves too busy to do justice, the solution is to provide accountability for those decision-makers. Just to reinforce: the reporter read the label on these field drug tests police were using to charge crimes, and ascertained that they were unfit for this use; yet the state lab which should have been broadcasting this information to the police, not only failed, but refused to test the same articles for months and months, until the case was literally at trial. I know it wouldn't make good press, but this story should be "labs, labs, labs, what in the world is wrong with state labs". You can't fix it with new laws, you need better people in charge of these labs.
Cynical outcome: the system can't handle the case load and instead of scaling, it just refuses to adjudicate any dispute that doesn't involve a noble. Justice between commoners is effectively abandoned as a duty by the state, and left to vigilantism.
> it just refuses to adjudicate any dispute that doesn't involve a noble
Oh I got news for you, that already happened.
Anyone that's had their car broken into, bike stolen, or house burgled can tell you that cops won't do anything.
And if you look at serious crimes like homicide, you'll find a clearance rate of about 66%. And that's their self reported clearance rate. It's not successful prosecution. That's just the "we've looked into this enough and have decreed we think this person did it". It's a lot worse if you look at crimes like rape.
The crimes that police actually police are property crimes. Specifically for the nobles. Cops are pretty good at responding to stores being robbed or a crime against a wealthy and well connected person. Steal $1000 from a target and you'll get the book thrown at you. Steal a $1000 bike in front of the same target and cops will shrug and say there's nothing they can do about it.
Your example is flawed because Target has cameras and a security staff watching for shoplifters, and they will detain you as you walk out the door, and they will provide video and eyewitness testimony to the prosecutor. It's a slam dunk case.
The shoplifters who do manage to walk out undetected are of no interest to the police, as there's no basis for a case against them.
Target has security cameras on the outside and staff constantly walking around wrangling carts. That's why I picked this exact example. The evidence is pretty much the same.
At many locations, cars at grocery stores get broken into pretty frequently. Yet it's unusual for cops to ever do anything about those cases. That's not due to a lack of evidence, most grocery stores have cameras throughout the lot.
Hell, it's even less of an excuse today due to the amount of surveillance via flock cameras cities have adopted. Yet cops still don't do a thing about this sort of theft.
Cops don't do anything about theft if it does not rise to level of a felony period. Most shoplifters don't get arrested until they hit felony level either.
Reason they get arrested for felony shoplifting is big box stores gift wrap those convictions. They have watched them, tracked exact items they have stolen down to UPC with price, have all the video/spreadsheet and it's all handed to cop/prosecutor on DVD. Those cases are so easy for prosecutor because conviction rate is ~100% and any testifying required is all paid for by big box store.
On bigger note, as society, we don't know how to handle people who have antisocial behavior. I'm not talking big stuff but low-level stuff that still impacts quality of life.
Kids picking up carts aren't going to detain anyone. It's the detaining that makes it work. The cops just come pick them up, they have eyewitnesses and video. Easy work.
The security guards that do the actual detaining are often off-duty LEO picking up extra hours. Even Kroger here has an armed officer at the exit door. So they can legally detain you and even arrest you.
True that they don't care about the bike outside. It's not their property.
They cannot detain you. Cops can detain you, Target staff can insist you have to stay, but they cannot easily and practically bar you from leaving.
They can initiate a citizen's arrest, which would permit them to detain you But if they are wrong, and you've committed no felony, that guard is civilly and criminally liable for false imprisonment -- a pretty serious charge. Most store security are unwilling to risk their own personal necks to protect the company's interest in $20 of shampoo or whatever.
I really do appreciate the sentiment, and in a flippant sense I agree, but if we're being real, the potential for harm to innocents, at least in the short/near term, is far greater if society devolves into vigilante mobs; study the Cultural Revolution if you want a realistic picture of some of the failure modes here. On the other hand, a period of chaos might be beneficial in the long term; that's the accelerationist position. Worth considering, but be careful with that mode of thinking. The ends justifying the means has gotten a great many people killed for ends that never manifested.
Waiving rights is weird. It’s well understood that you can’t waive your right not to be a slave, for example. Why should you be able to waive any right? The 6th amendment doesn’t say “unless the accused doesn’t want it.”
You can waive your right not to be a slave, but no one can gain the right to legally own slaves. The 13th amendment doesn't guarantee the rights of people to live free, it bans the practice of slavery. If you find someone living in slavery you don't arrest them for being a slave, you arrest the person who enslaved them. If someone asks you to do something illegal for them, you are obliged to say no; even if they are the only person directly impacted and they insist they want it, it is not in your authority to grant the request.
You can choose not to exercise any right, that's what makes it a right. Freedom of religion does not imply an obligation to practice religion, freedom of speech does not compel speech, right to bear arms does not imply an obligation to bear arms, etc. Your right to a swift and speedy trial is likewise something you can choose not to exercise. Things would be different if the law was all trials must be swift and speedy.
The speed which enables the most fair outcome overall is subject to interpretation. More time to prepare your case is probably good, but the longer the process drags out, the greater portion of your finite life you've lost to the process. Weighing these two factors, with all the other various factors, can't be done objectively for a generalized case that can apply to all real cases, hence giving the accused some amount of say over the matter.
> The tests are popular because they’re cheap, portable and can screen for drugs in mere minutes. It’s just not feasible to send all suspected drug samples to state laboratories, which would be far more expensive and could take days or weeks to return results.
Sounds like the govs problem, not the people accused of a crime. Limitations in testing do not justify using inaccurate tools. If it takes weeks, it takes weeks. Gov doesn’t get to ruin innocent lives just because it’s more convenient. At least, they shouldn’t… apparently they do
Part of the problem is that public defence is extremely stressful and not particularly well paid, as well as being less prestigious than prosecution.
Few are going to give their all to defend someone who has already "failed" a drug test. Better to sort out a quick plea deal and focus on cases that will impress private sector clients later.
If you can get out of jail time with some deal that requires a fine and putting up with some annoyances, is it really worth fighting things out to prove your innocence and risk failing?
Right, on an individual level that makes sense - but whoever saw the error rate for this test (or lied about it to sell it) and approved it for use by police deserves jail time themselves.
You’d think we’d have a mechanism to make that happen.
And, to put a charitable gloss on it—many of your clients who protest their innocence did actually have something true-positive on them. TFA cites manufacturers claiming a 4% false positive rate in lab conditions, and protesters claiming a 15-18% FPR in field conditions [*]. Offensive and intolerable in the aggregate, yes; but as far as base odds for any specific case in front of me?
Assuming 18% of my defendants truly didn’t have drugs or drug residue on them, that still means 4 out of 5 of them did—and that the extra months of sitting in jail and fighting would lead nowhere for them. What’s 6 months of diversion by comparison?
Even beyond the odds, how many of defendants’ claims are precise enough to implicate test accuracy specifically? “No, man, I swear I don’t do that stuff anymore” might be completely true and still result in a marginal-but-confirmatory lab result for the swab of the ol’ contraband satchel or whatever.
Seems to me that’s the sort of stuff that the plea-negotiation part is for: instead of hoping expensive and slow science will give you certainty (or context), it’s “hey prosecutor, even if the test is right, we’re talking residue not bricks… diversion and call it a day?”
I feel like, from the outside (and fed a steady diet of Law and Order television show), people grossly overestimate the degree of certainty embedded in a criminal conviction. I’m reminded of the classic Kalven and Zeisel study (1967) [1] finding, among other things, that judges and juries who sat through the exact same trial disagreed on guilt or innocence in up to 25% of cases.
False convictions are outrageous, and I understand our individual instincts here to say “go to the mat for the truth!” But people are complicated, context is hazy, and there’s some irreducible residual rate at which any approach to justice gets it wrong. Which adds up to a lot more individuals than we’d like to assume.
One of many reasons not to confuse the person with the bureaucratic record of the person.
[*] Or, as the CNN person writes, a “91% error rate” per an NYCDOI study… guessing because there they were over-applying the tests in situations with extremely low base rates? At first I assumed this was a typical case of journalistic innumeracy, but reading through the study [0], they’re absolutely right and worth a quick aside: 91% really was the actual false positive rate the lab found in actual field tests. Surface swabs in a jail mail interdiction program, only examining the fentanyl tests, but still. It’s a wild read in all sorts of ways: there was a known reaction between the field test and chemicals in paper, but they used it for the mail anyway; the more false positives they saw, the more they panicked that all the mail had fentanyl in it. 89% of all the initial DOC field tests came back positive, 91% of those positives turned out to be false ones. The administration interpreted this to mean that all the inmates’ families were clearly “soaking envelopes in liquid fentanyl,” then mailing them to inmates to “chew.” The misconception led them all the way to trying to ban physical mail in the system.
You know, why not just make it a lot faster and more convenient and just go by the expert assessment of the officer on scene? No need for all the bloat.
More specificity would help. Cops, cop culture, incompetent and purposely harmful training, and the appalling nature of our criminal "justice" system is what ruins lives. Some other parts of government might be just as bad, but in other ways for other reasons.
It's extremely rare for any part of government to have that as an intended purpose.
But it's extremely common, unfortunately, for people involved to be willing to accept that as a side effect in pursuing whatever their goals are - whether that's gaining funding for their police department, or raising political donations from the owners of a private prison, or keeping poor people away from their beautiful upper middle class neighbourhood, or environment-ruining chemical company, or... whatever.
Organizations such as OSF/OSI (Open Society Foundations, not Open Software Foundation) have successfully placed their preferred candidates in positions of power in many major US jurisdictions. If you research, you'll see many cases of OSF DAs prosecuting or not prosecuting based on their political ideology. Many prosecutions are politically motivated, but now we have foundations funding activist candidates who are all pushing the same agenda. The result is diminished trust in government, which the activists will exploit to eventually make things even worse, because "capitalism is not working."
You make it sound like they are doing corruption. I.e. don’t prosecute your friends, do prosecute your enemies. But this is more like using the power at your jurisdiction level to oppose unjust laws.
I.e. where i live the city council long ago directed police to stop arresting people for marijuana possession - on the grounds that this is an unjust law and criminalizing it is tying up resources and doing more harm than good, and because the majority of the city’s population supports legalization. City gov doesn’t have the power to change those laws, but they can fix it locally by directing enforcement away from them. A decade later, it was legalized - imo proving that it was the right decision.
This did not “diminish trust” in the gov. In fact, laws that the majority disagree with but stay on the books do far far more damage to the credibility of gov, in my opinion
All of the simple drug tests are intended for use as screening tools, with positive results sent to labs for verification.
> Even colorimetric test makers say their products only screen for the possibility of illegal drugs – and should not be considered tools for verification.
> “NOTE: ALL TEST RESULTS MUST BE CONFIRMED BY AN APPROVED ANALYTICAL LABORATORY!” reads one warning for a pack of colorimetric tests.
They should have known this and followed proper procedure.
Also keep this in mind for your employment drug screening. This will typically use more advanced tests for the first pass, but if someone comes up positive then they should automatically send it to the more advanced and accurate screening step. The good testing companies do this automatically but I’ve heard stories where some cheap testing companies did not do this and falsely accused employees didn’t know to request the accurate screening step.
I suspect if you disallow arrests based on these tests and require a lab followup, the tests will cease to be used entirely.
The police know the false positive rate and they'll stop wasting their time and rely on their training and instincts, instead.
There's an implication of automation bias here, too. "It came back blue, so I can just make an arrest knowing that the blue bag told me I should. Not my fault if it's wrong."
Pushing farther, if the law said that if there was a false positive, the arresting officer would have to spend one day in jail per day the suspect was jailed, no cop would ever dare use this test. That demonstrates the amount of trust they actually have in it.
The purpose of the system is what it does. Here, drug laws result in tens of thousands of wrongful arrests, some portion of which will take the plea deal even though they are innocent. Typically because they are low income and need to get out of holding so they don't lose their job.
Instead they get a record (for nothing) and risk prison. They cannot afford to prove their innocence.
AFAIK some types of drug tests can't measure whether you're high on $drug now or if you're taken it before and you're sober now. If you're driving sober but you've taken $drug yesterday, you might be arrested for DWI.
If these tests can't reliably show you're high at the time the test was taken, don't use them.
For anything other than driving or operating heavy machinery and so on, there's no point in such tests at all. Let people take whatever drugs they want. Just do what we do with legal drugs like alcohol and cigarettes - regulate the quality, require an ID card for purchase and tax them.
This will obviously lower organized crime. If you make prostitution legal, you'll lower it even more. There will still be people trying to sell their shitty home made drugs cheaper than the regulated ones - like we have illegal cigarettes, but that's nothing compared to what we have now.
Make drugs less of a taboo. Educate people on harm reduction and make it easy to admit when you have a problem with something.
As a somewhat-educated person without medical education, I've taken almost everything under the sun and still function well within society. It's really possible to use drugs responsibly. If the image you have is a junkie with ragged clothes lying on some old mattress under a bridge sharing a dirty needle, you're only looking at the uneducated people with no safety net from society. Believe it or not, educated drug users are everywhere. We just don't often talk about it like we don't casually mention our fetishes to others in work or academia.
But drugs and sex are fun, maybe too fun, and we can't let the citizens enjoy themselves too much. :/
> AFAIK some types of drug tests can't measure whether you're high on $drug now or if you're taken it before and you're sober now. If you're driving sober but you've taken $drug yesterday, you might be arrested for DWI.
This is true for THC (marijuana) tests that look for metabolites of THC with long half-lives. It takes a very long time for the body to metabolize THC through the different steps and then eliminate those metabolites.
For many of the drugs named in the article their elimination is rapid. For some like fentanyl their concentrations are also low. If someone has an appreciable concentration of fentanyl detectable by a simple test they are very inebriated.
The prosecution and the judges and the law enforcement and probation officers and law enforcement who protect the judge and the prison system and the jail system are in quite a cozy and self perpetuating cycle. Prosecutors in USA get such high conviction rates cause they ladder charges to encourage defendants to take plea deals, everyone in system profits. It’s so profitable most large local law enforcement agencies in USA have marketing departments.
They're also pretty awful if you try to use them for safety purposes. Like... how blue can purple be before it's not purple anymore, idk. Last year it was very purple, but now the test is a year older, or is the product non-uniform and that's why it's different...
Basically, if you inject enough suspicion into any situation, colorimetric tests will eventually lead you to believe that you're in trouble. And then later if you bring the sample to somebody with access to real equipment it often turns out there was no trouble besides the sort you were looking for in the first place.
I honestly think we could save a lot of lives by just putting a gas chromatography machine in the library next to the 3d printers and training people to use it.
Fundamentally, the problem is that we have too many arrests. An officer arresting someone on the spot because of suspicion should only be done when they are assumed to be endangering people or likely to be victimizing more people. Someone carrying a small amount of drugs is not doing that if they are not visibly impaired.
If they want to take a sample into evidence and have it tested, it can wait a few weeks for real testing and then they can issue a bench warrant.
We really need to start asking for this to be the norm in the US.
I agree with your thinking in the context of "keeping drug policy broadly the same but improving policing of it".
But fuck current drug policy. If someone is high on cannabis, or MDMA, or even "harder" drugs like cocaine and heroin, as long as it's not causing them to be violent or to commit other crimes such as theft then why should that become a legal problem for them any more than if they were intoxicated from spending a few hours drinking beers? And with the odd exception like keeping existing "driving under the influence" laws, we don't need dedicated "violent because of drugs" or "theft because of drugs" legislation, those crime should be treated the same regardless of whether drugs were involved or not.
The current "war on drugs" has been a failure at preventing people from buying and using recreational drugs, and it's been a failure at protecting society and members of society from themselves and from others, because evidence and experts all points towards better results coming from investing in being able to offer medical treatment services (rehab, therapy, etc) than policing and prison services.
I very much think there will come a time in the future, if we haven't accidentally killed our species by then, that we look back on this time the same way as most of us currently look at historic types of slavery, or stoning homosexuals to death, as both idiotic and incredible immoral. I hope we reach that point in the coming years/decades, rather than needing centuries.
(To be clear, I wrote "historic slavery" not to imply there are some forms of modern slavery that I think are OK; but because sadly there is still modern slavery ongoing all around the world, so we can't say that it's a universally condemned thing of the past. Hopefully one day it will be, too.)
but even the pricey tests can wrongfully have positives. if you eat sweets in which poppy seeds are ingredients you test positive for opioids (although near to the detection limit)
It looks like a classic case of "guilty until proven otherwise". Arrests should never be made based just on "it may be", but on some solid evidence. It is much safer to make the arrest when the lab confirms the problem, not when there is a hint there may be one.
> For those who get arrested due to colorimetric testing, “over 90% of people are taking a plea deal because they can’t afford to remain in jail and wait six months for laboratory tests,” Walsh said.
This touches on a question to which I'd love to know the answer: what would happen if those charged with crimes could not waive their right to a speedy trial and plea deals were disallowed?
For the accused: those with low resources would go to trial with less time to mount a defense. Disallowing plea deals would remove the possibility of coercing lower-severity conviction pleas.
For the prosecutor: less time to mount a prosecution.
Benefits to courts and jails: much cleaner and more open dockets, jails cleared out much quicker.
Presumably this would lead to more rational charges - fewer charges and charges that were higher priority and easier to prove.
In the short term, prosecutors would have no choice but to drop a huge number of charges as they would be overwhelmed.
EDIT: here's an interesting data point where it looks like NYC passed a law that required prosecutors to have all evidence ready prior to the speedy trial date. It seems like it drove a lot of dismissals of low level stuff:
https://datacollaborativeforjustice.org/wp-content/uploads/2...
It's obviously a problem with efficiency, resources and incentives. Earlier court dates is reshuffling deck chairs on the titanic, basically after the ship sank.
Since the problem is about labs and technology, and that the state labs declared themselves too busy to do justice, the solution is to provide accountability for those decision-makers. Just to reinforce: the reporter read the label on these field drug tests police were using to charge crimes, and ascertained that they were unfit for this use; yet the state lab which should have been broadcasting this information to the police, not only failed, but refused to test the same articles for months and months, until the case was literally at trial. I know it wouldn't make good press, but this story should be "labs, labs, labs, what in the world is wrong with state labs". You can't fix it with new laws, you need better people in charge of these labs.
Cynical outcome: the system can't handle the case load and instead of scaling, it just refuses to adjudicate any dispute that doesn't involve a noble. Justice between commoners is effectively abandoned as a duty by the state, and left to vigilantism.
> it just refuses to adjudicate any dispute that doesn't involve a noble
Oh I got news for you, that already happened.
Anyone that's had their car broken into, bike stolen, or house burgled can tell you that cops won't do anything.
And if you look at serious crimes like homicide, you'll find a clearance rate of about 66%. And that's their self reported clearance rate. It's not successful prosecution. That's just the "we've looked into this enough and have decreed we think this person did it". It's a lot worse if you look at crimes like rape.
The crimes that police actually police are property crimes. Specifically for the nobles. Cops are pretty good at responding to stores being robbed or a crime against a wealthy and well connected person. Steal $1000 from a target and you'll get the book thrown at you. Steal a $1000 bike in front of the same target and cops will shrug and say there's nothing they can do about it.
Your example is flawed because Target has cameras and a security staff watching for shoplifters, and they will detain you as you walk out the door, and they will provide video and eyewitness testimony to the prosecutor. It's a slam dunk case.
The shoplifters who do manage to walk out undetected are of no interest to the police, as there's no basis for a case against them.
Target has security cameras on the outside and staff constantly walking around wrangling carts. That's why I picked this exact example. The evidence is pretty much the same.
At many locations, cars at grocery stores get broken into pretty frequently. Yet it's unusual for cops to ever do anything about those cases. That's not due to a lack of evidence, most grocery stores have cameras throughout the lot.
Hell, it's even less of an excuse today due to the amount of surveillance via flock cameras cities have adopted. Yet cops still don't do a thing about this sort of theft.
Cops don't do anything about theft if it does not rise to level of a felony period. Most shoplifters don't get arrested until they hit felony level either.
Reason they get arrested for felony shoplifting is big box stores gift wrap those convictions. They have watched them, tracked exact items they have stolen down to UPC with price, have all the video/spreadsheet and it's all handed to cop/prosecutor on DVD. Those cases are so easy for prosecutor because conviction rate is ~100% and any testifying required is all paid for by big box store.
On bigger note, as society, we don't know how to handle people who have antisocial behavior. I'm not talking big stuff but low-level stuff that still impacts quality of life.
Which is why I picked the $1000 bike. In the majority of states that's beyond the threshold for felony theft.
Kids picking up carts aren't going to detain anyone. It's the detaining that makes it work. The cops just come pick them up, they have eyewitnesses and video. Easy work.
The security guards that do the actual detaining are often off-duty LEO picking up extra hours. Even Kroger here has an armed officer at the exit door. So they can legally detain you and even arrest you.
True that they don't care about the bike outside. It's not their property.
They cannot detain you. Cops can detain you, Target staff can insist you have to stay, but they cannot easily and practically bar you from leaving.
They can initiate a citizen's arrest, which would permit them to detain you But if they are wrong, and you've committed no felony, that guard is civilly and criminally liable for false imprisonment -- a pretty serious charge. Most store security are unwilling to risk their own personal necks to protect the company's interest in $20 of shampoo or whatever.
This is already happening in Germany.
This seems implicitly preferable than the beauacratic death of the alternative.
I really do appreciate the sentiment, and in a flippant sense I agree, but if we're being real, the potential for harm to innocents, at least in the short/near term, is far greater if society devolves into vigilante mobs; study the Cultural Revolution if you want a realistic picture of some of the failure modes here. On the other hand, a period of chaos might be beneficial in the long term; that's the accelerationist position. Worth considering, but be careful with that mode of thinking. The ends justifying the means has gotten a great many people killed for ends that never manifested.
Neither are acceptable, so a third way must be found
Waiving rights is weird. It’s well understood that you can’t waive your right not to be a slave, for example. Why should you be able to waive any right? The 6th amendment doesn’t say “unless the accused doesn’t want it.”
You can waive your right not to be a slave, but no one can gain the right to legally own slaves. The 13th amendment doesn't guarantee the rights of people to live free, it bans the practice of slavery. If you find someone living in slavery you don't arrest them for being a slave, you arrest the person who enslaved them. If someone asks you to do something illegal for them, you are obliged to say no; even if they are the only person directly impacted and they insist they want it, it is not in your authority to grant the request.
You can choose not to exercise any right, that's what makes it a right. Freedom of religion does not imply an obligation to practice religion, freedom of speech does not compel speech, right to bear arms does not imply an obligation to bear arms, etc. Your right to a swift and speedy trial is likewise something you can choose not to exercise. Things would be different if the law was all trials must be swift and speedy.
Because it's presumably beneficial. It gives your lawyers extra time to prepare for the case or to potentially settle on more favorable terms.
If you have a right to both a fair trial and a speedy trial, there should be no trial that does not provide both.
The speed which enables the most fair outcome overall is subject to interpretation. More time to prepare your case is probably good, but the longer the process drags out, the greater portion of your finite life you've lost to the process. Weighing these two factors, with all the other various factors, can't be done objectively for a generalized case that can apply to all real cases, hence giving the accused some amount of say over the matter.
Waiving your right not to be a slave could be beneficial too.
You can become someone's slave if you really want to. The only part that can't be enforced is you can't be coerced to stay.
Plenty of cults have slaves in the US. But because the are willing, nothing is done about it.
Heck, plenty of us companies still rely on slave labor. Look at Aramark's use of prisoners, for example.
That's an explicit carveout in the Constitution allowing slavery as punishment for a crime, not someone waiving their rights.
> The tests are popular because they’re cheap, portable and can screen for drugs in mere minutes. It’s just not feasible to send all suspected drug samples to state laboratories, which would be far more expensive and could take days or weeks to return results.
Sounds like the govs problem, not the people accused of a crime. Limitations in testing do not justify using inaccurate tools. If it takes weeks, it takes weeks. Gov doesn’t get to ruin innocent lives just because it’s more convenient. At least, they shouldn’t… apparently they do
Part of the problem is that public defence is extremely stressful and not particularly well paid, as well as being less prestigious than prosecution.
Few are going to give their all to defend someone who has already "failed" a drug test. Better to sort out a quick plea deal and focus on cases that will impress private sector clients later.
If you can get out of jail time with some deal that requires a fine and putting up with some annoyances, is it really worth fighting things out to prove your innocence and risk failing?
Right, on an individual level that makes sense - but whoever saw the error rate for this test (or lied about it to sell it) and approved it for use by police deserves jail time themselves.
You’d think we’d have a mechanism to make that happen.
And, to put a charitable gloss on it—many of your clients who protest their innocence did actually have something true-positive on them. TFA cites manufacturers claiming a 4% false positive rate in lab conditions, and protesters claiming a 15-18% FPR in field conditions [*]. Offensive and intolerable in the aggregate, yes; but as far as base odds for any specific case in front of me?
Assuming 18% of my defendants truly didn’t have drugs or drug residue on them, that still means 4 out of 5 of them did—and that the extra months of sitting in jail and fighting would lead nowhere for them. What’s 6 months of diversion by comparison?
Even beyond the odds, how many of defendants’ claims are precise enough to implicate test accuracy specifically? “No, man, I swear I don’t do that stuff anymore” might be completely true and still result in a marginal-but-confirmatory lab result for the swab of the ol’ contraband satchel or whatever.
Seems to me that’s the sort of stuff that the plea-negotiation part is for: instead of hoping expensive and slow science will give you certainty (or context), it’s “hey prosecutor, even if the test is right, we’re talking residue not bricks… diversion and call it a day?”
I feel like, from the outside (and fed a steady diet of Law and Order television show), people grossly overestimate the degree of certainty embedded in a criminal conviction. I’m reminded of the classic Kalven and Zeisel study (1967) [1] finding, among other things, that judges and juries who sat through the exact same trial disagreed on guilt or innocence in up to 25% of cases.
False convictions are outrageous, and I understand our individual instincts here to say “go to the mat for the truth!” But people are complicated, context is hazy, and there’s some irreducible residual rate at which any approach to justice gets it wrong. Which adds up to a lot more individuals than we’d like to assume.
One of many reasons not to confuse the person with the bureaucratic record of the person.
[*] Or, as the CNN person writes, a “91% error rate” per an NYCDOI study… guessing because there they were over-applying the tests in situations with extremely low base rates? At first I assumed this was a typical case of journalistic innumeracy, but reading through the study [0], they’re absolutely right and worth a quick aside: 91% really was the actual false positive rate the lab found in actual field tests. Surface swabs in a jail mail interdiction program, only examining the fentanyl tests, but still. It’s a wild read in all sorts of ways: there was a known reaction between the field test and chemicals in paper, but they used it for the mail anyway; the more false positives they saw, the more they panicked that all the mail had fentanyl in it. 89% of all the initial DOC field tests came back positive, 91% of those positives turned out to be false ones. The administration interpreted this to mean that all the inmates’ families were clearly “soaking envelopes in liquid fentanyl,” then mailing them to inmates to “chew.” The misconception led them all the way to trying to ban physical mail in the system.
[0] https://www.nyc.gov/assets/doi/reports/pdf/2024/FieldTesting...
[1] https://www.commentary.org/articles/abraham-goldstein/the-am... and replicated recently https://scholarship.law.cornell.edu/facpub/343/
You know, why not just make it a lot faster and more convenient and just go by the expert assessment of the officer on scene? No need for all the bloat.
I would dread the arrival of this officer/judge arriving on the scene.
I. AM. THE LAW.
Dreddful.
Is this satire?
Because this is HN, and especially because it's HN's audience reading it, this is a perfectly cromulent question.
One hopes it's satire. Can't tell, unfortunately.
Ruining innocent people’s lives is what government is best at doing. Don’t think of as convenient. Think of it as realization of purpose.
More specificity would help. Cops, cop culture, incompetent and purposely harmful training, and the appalling nature of our criminal "justice" system is what ruins lives. Some other parts of government might be just as bad, but in other ways for other reasons.
Criminal legal system is what i’ve been using.
Sorry but that's bullshit.
It's extremely rare for any part of government to have that as an intended purpose.
But it's extremely common, unfortunately, for people involved to be willing to accept that as a side effect in pursuing whatever their goals are - whether that's gaining funding for their police department, or raising political donations from the owners of a private prison, or keeping poor people away from their beautiful upper middle class neighbourhood, or environment-ruining chemical company, or... whatever.
A system’s purpose is what it does, not what it claims to do.
That doesn’t make sense. Such a “I’m 14 and this is deep” thought terminating cliche.
The purpose of a system is what it does. If that wasn't the purpose, the system would be changed.
That’s as dumbs as the saying “there can’t be a 100$ bill on the ground because if there was it’d have been picked up.”
It's not at all like that?
Claiming that a system's purpose is something it consistently fails to do is absurd. Intentions don't matter, outcomes matter.
This is a pretty basic systems theorist argument, to be honest...
It's not as rare as you might think.
Organizations such as OSF/OSI (Open Society Foundations, not Open Software Foundation) have successfully placed their preferred candidates in positions of power in many major US jurisdictions. If you research, you'll see many cases of OSF DAs prosecuting or not prosecuting based on their political ideology. Many prosecutions are politically motivated, but now we have foundations funding activist candidates who are all pushing the same agenda. The result is diminished trust in government, which the activists will exploit to eventually make things even worse, because "capitalism is not working."
You make it sound like they are doing corruption. I.e. don’t prosecute your friends, do prosecute your enemies. But this is more like using the power at your jurisdiction level to oppose unjust laws.
I.e. where i live the city council long ago directed police to stop arresting people for marijuana possession - on the grounds that this is an unjust law and criminalizing it is tying up resources and doing more harm than good, and because the majority of the city’s population supports legalization. City gov doesn’t have the power to change those laws, but they can fix it locally by directing enforcement away from them. A decade later, it was legalized - imo proving that it was the right decision.
This did not “diminish trust” in the gov. In fact, laws that the majority disagree with but stay on the books do far far more damage to the credibility of gov, in my opinion
All of the simple drug tests are intended for use as screening tools, with positive results sent to labs for verification.
> Even colorimetric test makers say their products only screen for the possibility of illegal drugs – and should not be considered tools for verification.
> “NOTE: ALL TEST RESULTS MUST BE CONFIRMED BY AN APPROVED ANALYTICAL LABORATORY!” reads one warning for a pack of colorimetric tests.
They should have known this and followed proper procedure.
Also keep this in mind for your employment drug screening. This will typically use more advanced tests for the first pass, but if someone comes up positive then they should automatically send it to the more advanced and accurate screening step. The good testing companies do this automatically but I’ve heard stories where some cheap testing companies did not do this and falsely accused employees didn’t know to request the accurate screening step.
I suspect if you disallow arrests based on these tests and require a lab followup, the tests will cease to be used entirely.
The police know the false positive rate and they'll stop wasting their time and rely on their training and instincts, instead.
There's an implication of automation bias here, too. "It came back blue, so I can just make an arrest knowing that the blue bag told me I should. Not my fault if it's wrong."
Pushing farther, if the law said that if there was a false positive, the arresting officer would have to spend one day in jail per day the suspect was jailed, no cop would ever dare use this test. That demonstrates the amount of trust they actually have in it.
The purpose of the system is what it does. Here, drug laws result in tens of thousands of wrongful arrests, some portion of which will take the plea deal even though they are innocent. Typically because they are low income and need to get out of holding so they don't lose their job.
Instead they get a record (for nothing) and risk prison. They cannot afford to prove their innocence.
Why do you have to wait in jail for lab result?
Police have to be winning the war on drugs but not literally taking that financing that doesn't require congressional oversight away from the CIA.
AFAIK some types of drug tests can't measure whether you're high on $drug now or if you're taken it before and you're sober now. If you're driving sober but you've taken $drug yesterday, you might be arrested for DWI.
If these tests can't reliably show you're high at the time the test was taken, don't use them.
For anything other than driving or operating heavy machinery and so on, there's no point in such tests at all. Let people take whatever drugs they want. Just do what we do with legal drugs like alcohol and cigarettes - regulate the quality, require an ID card for purchase and tax them.
This will obviously lower organized crime. If you make prostitution legal, you'll lower it even more. There will still be people trying to sell their shitty home made drugs cheaper than the regulated ones - like we have illegal cigarettes, but that's nothing compared to what we have now.
Make drugs less of a taboo. Educate people on harm reduction and make it easy to admit when you have a problem with something.
As a somewhat-educated person without medical education, I've taken almost everything under the sun and still function well within society. It's really possible to use drugs responsibly. If the image you have is a junkie with ragged clothes lying on some old mattress under a bridge sharing a dirty needle, you're only looking at the uneducated people with no safety net from society. Believe it or not, educated drug users are everywhere. We just don't often talk about it like we don't casually mention our fetishes to others in work or academia.
But drugs and sex are fun, maybe too fun, and we can't let the citizens enjoy themselves too much. :/
> AFAIK some types of drug tests can't measure whether you're high on $drug now or if you're taken it before and you're sober now. If you're driving sober but you've taken $drug yesterday, you might be arrested for DWI.
This is true for THC (marijuana) tests that look for metabolites of THC with long half-lives. It takes a very long time for the body to metabolize THC through the different steps and then eliminate those metabolites.
For many of the drugs named in the article their elimination is rapid. For some like fentanyl their concentrations are also low. If someone has an appreciable concentration of fentanyl detectable by a simple test they are very inebriated.
If you relate funding to arrests, more arrests will be made.
Perhaps shifting funding to relate to guilty verdicts could help?
At least then there is an objective 3rd party that has to agree with the charge.
Of course… the judges and the cops are paid by the same entity. And the judges and the cops know each other through their work.
The prosecution and the judges and the law enforcement and probation officers and law enforcement who protect the judge and the prison system and the jail system are in quite a cozy and self perpetuating cycle. Prosecutors in USA get such high conviction rates cause they ladder charges to encourage defendants to take plea deals, everyone in system profits. It’s so profitable most large local law enforcement agencies in USA have marketing departments.
> Perhaps shifting funding to relate to guilty verdicts could help?
More quilty verdicts would be made. Regardless of guilt
They're also pretty awful if you try to use them for safety purposes. Like... how blue can purple be before it's not purple anymore, idk. Last year it was very purple, but now the test is a year older, or is the product non-uniform and that's why it's different...
Basically, if you inject enough suspicion into any situation, colorimetric tests will eventually lead you to believe that you're in trouble. And then later if you bring the sample to somebody with access to real equipment it often turns out there was no trouble besides the sort you were looking for in the first place.
I honestly think we could save a lot of lives by just putting a gas chromatography machine in the library next to the 3d printers and training people to use it.
Fundamentally, the problem is that we have too many arrests. An officer arresting someone on the spot because of suspicion should only be done when they are assumed to be endangering people or likely to be victimizing more people. Someone carrying a small amount of drugs is not doing that if they are not visibly impaired.
If they want to take a sample into evidence and have it tested, it can wait a few weeks for real testing and then they can issue a bench warrant.
We really need to start asking for this to be the norm in the US.
I agree with your thinking in the context of "keeping drug policy broadly the same but improving policing of it".
But fuck current drug policy. If someone is high on cannabis, or MDMA, or even "harder" drugs like cocaine and heroin, as long as it's not causing them to be violent or to commit other crimes such as theft then why should that become a legal problem for them any more than if they were intoxicated from spending a few hours drinking beers? And with the odd exception like keeping existing "driving under the influence" laws, we don't need dedicated "violent because of drugs" or "theft because of drugs" legislation, those crime should be treated the same regardless of whether drugs were involved or not.
The current "war on drugs" has been a failure at preventing people from buying and using recreational drugs, and it's been a failure at protecting society and members of society from themselves and from others, because evidence and experts all points towards better results coming from investing in being able to offer medical treatment services (rehab, therapy, etc) than policing and prison services.
I very much think there will come a time in the future, if we haven't accidentally killed our species by then, that we look back on this time the same way as most of us currently look at historic types of slavery, or stoning homosexuals to death, as both idiotic and incredible immoral. I hope we reach that point in the coming years/decades, rather than needing centuries.
(To be clear, I wrote "historic slavery" not to imply there are some forms of modern slavery that I think are OK; but because sadly there is still modern slavery ongoing all around the world, so we can't say that it's a universally condemned thing of the past. Hopefully one day it will be, too.)
but even the pricey tests can wrongfully have positives. if you eat sweets in which poppy seeds are ingredients you test positive for opioids (although near to the detection limit)
It looks like a classic case of "guilty until proven otherwise". Arrests should never be made based just on "it may be", but on some solid evidence. It is much safer to make the arrest when the lab confirms the problem, not when there is a hint there may be one.
Drug war is a war on our democracy.
The companies that make these tests need to be sued out of existence.