For years, they were among the most routine proceedings in criminal court in Portland, Oregon.
Defendants facing drug possession charges based on inexpensive test kits used by police to detect illegal substances would strike a quick guilty plea at a preliminary hearing. Guilty or just eager to get out of jail as quickly as possible, the defendants would be sent off to serve their time or enter into addiction treatment. The drug-kit results that had prompted their arrest would then never have to be confirmed by a lab.
Last July, shortly after ProPublica and The New York Times Magazine published an article detailing that the kits are prone to error and years earlier had helped account for roughly 300 wrongful convictions in Houston, the Multnomah County District Attorney’s Office in Portland decided to change the way it secured guilty pleas in drug possession cases. Today, when a defendant pleads guilty before the lab analysis is performed, prosecutors must still have the field test results double-checked.
J. Russell Ratto, the head of conviction integrity at the district attorney’s office, had asked his colleagues whether it might be wise to change the policy after the article’s publication.
“Our DDAs [deputy district attorneys] are always looking to make sure we’re using the very best practices,” said J.R. Ujifusa, the deputy district attorney who oversees drug prosecutions.
Drug field tests have been used for decades by police departments across the country. Officers drop suspicions material in a pouch of chemicals and look for changes in colors that might indicate the presence of illegal drugs. The tests were typically used to establish probable cause for an arrest. Courts across the country have routinely barred them from being used as evidence at trial, demanding results confirmed by certified labs.
But ProPublica’s reporting has shown that field tests have grown much more consequential; in a criminal justice system in which 90 percent or more of all criminal convictions come via a plea bargain, in tens of thousands of cases a year the tests are the critical “evidence” used to gain convictions. In many cases, to be sure, those arrested are guilty. But just as surely, some number of innocent people — jailed and desperate to get back to their families and jobs — have pleaded guilty.
That was certainly the case in Houston. In 2014, the Harris County District Attorney’s office realized that several hundred people who had pleaded guilty after field tests indicated they had drugs actually were innocent once samples were subjected to more formal testing by Houston’s crime lab. It took years to uncover the wrongful convictions, and two years later, prosecutors are still working to notify the innocent and correct the record.
The district attorney in Houston subsequently ordered that no guilty pleas would be accepted in cases involving field tests until the lab had confirmed the presence of illegal drugs. Since then, the number of drug convictions has fallen markedly, with dismissals soaring.
Prosecutors in Multnomah County wanted to make sure they were not allowing innocent people to be saddled with wrongful convictions, Ujifusa said, which is why the office has now mandated lab confirmation of field test results even after guilty pleas.
Ratto, the conviction integrity unit chief, also reviewed cases from 2009 to the present in which the Oregon State Police Forensic Laboratory determined suspected drugs were not drugs, to see if any of those cases had nonetheless resulted in drug possession convictions. He discovered five wrongful convictions based on inaccurate field test results. Ujifusa said the district attorney’s office has already had those convictions vacated.
Tens of thousands of people every year are sent to jail based on the results of a $2 roadside drug test. Widespread evidence shows that these tests routinely produce false positives. Why are police departments and prosecutors still using them? Read the story.
Ratto did not recheck field test results beyond those already analyzed by the state’s forensic scientists. The review “was not to prove or disprove the scientific validity” of the kits in use in Multnomah County, Ujifusa said. “Rather it was to identify cases where a defendant had resolved his case before a lab test could be obtained and the results later showed either a different or no controlled substance.”
Multnomah County courts produce roughly 2,000 drug possession convictions a year, with police test kits contributing to at least the initial arrest for many of these. Ujifusa said he was not certain how often defendants plead guilty to drug charges with only a field test result, nor what happens to the drug evidence in a majority of those convictions.
It is also not yet clear whether the state lab confirmed field test results in all Portland-area drug possession cases. If not, there could potentially be other wrongful convictions based upon the flawed kits.