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from the I'm-positive-there-are-false-positives dept.
Pro Publica and The New York Times Magazine have each written about field drug testing by U.S. law enforcement agencies. The tests are undertaken with disposable kits containing chemicals. A sample is brought into contact with the chemicals and there may be a colour change, which is assessed by the officer. The essay tells the story of people against whom criminal charges regarding illegal drugs were filed, with the results of these field testing kits as the primary evidence in the prosecutions.
According to the essay, the use of the kits has various pitfalls which can lead to false positive results. For one thing, analytes which are legal to possess can produce the same colour change as illegal substances. For another, poor lighting which may be encountered in the field can distort the officer's perception of colours. Confirmation bias can occur. Also, officers may receive inadequate (or--the submitter supposes--incorrect) training in the interpretation of the colours. A former Houston police chief offered the opinion that
Officers shouldn't collect and test their own evidence, period. I don't care whether that's cocaine, blood, hair.
The essay mentions gas chromatography–mass spectroscopy (GC-MS), an instrumental method which is typically undertaken in a laboratory, as providing more reliable results. The submitter notes that portable GC-MS equipment does exist (1, 2).
Nationwide, 62 percent of forensics labs do not conduct further testing in cases in which a field drug test was used and the defendant made a guilty plea. However, the Houston crime laboratory has been doing such testing. They have found that false positives are commonplace. The district attorney's office for Harris County, Texas, which handles cases from Houston, has been informed about those test results and is undertaking "efforts to overturn wrongful convictions." In three years, about as many such convictions have been overturned in Harris County as in the rest of the United States.
Referenced stories:
(Score: 5, Insightful) by Anonymous Coward on Tuesday July 26 2016, @12:41PM
I really don't have a problem with the tests themselves, inaccurate or not. The limitations of the tests are well-known. They are probably still more accurate than drug-sniffing dogs (while dogs have a phenomenal sense of smell, they react more to what their handler wants them to do, than to what they are supposed to be smelling for), and certainly more accurate than the so-called "reasonable suspicion" that leads police to stop people for any or no reason, frequently escalating to all manner of police misbehavior, and are more accurate than polygraph tests as well (which are only one step up from phrenology, more like a carnival trick than an actual investigative tool).
These tests are not admitted as evidence in court. They are used for investigative purposes by the police. If the field test's results are incorrect, this should be detected in follow-up analysis by the forensic lab, or the defendant's opportunity to have the evidence tested by their own laboratory, or simply to testify in court about the truth. In fact, police forensic labs are often also inaccurate, which is why it is important for the defendants to challenge the evidence themselves. The problem is that all this costs time and money, money which the victims of these guilt-by-assertion shakedowns usually don't have, and time which they frequently can't come up with given the pressure of the situation.
But our criminal "justice" system is excellent at extracting guilty pleas from most of these people, even if they are innocent. Although police and prosecutors have an ethical obligation to abandon prosecution of people who are not believed guilty, this is sacrificed on the altar of quick and rapid convictions, "justified" by the belief that they were probably guilty of something. The threat of prosecution, and the defendant's lack of knowledge of their rights and lack of an attorney during preliminary proceedings, is enough to convince many people to plead guilty, even if they aren't. That is really where the problem lies.
So no, it's not the tests. It's the rampant corruption and racism of the system that leads to the abuse of the tests. And it's the War On Some Drugs, more accurately termed the War On Minorities or the War On Civil Liberties, which forces the police and courts into assembly-line manufactured guilt rather than the pursuit of actual crimes and criminals.
(Score: 4, Interesting) by Thexalon on Tuesday July 26 2016, @01:48PM
Part of the problem is the public, and a system of elected judges that is absolutely unique and makes very little sense. In almost everywhere else in the world, the whole point is for judges in particular to *not* be accountable to the public so that they can be more impartial and not as swayed by public opinion. The most common alternatives are either appointment (like the US federal courts) or in a few cases a civil service based on coursework and examinations.
The problem is that approximately zero judges campaign on a platform of "I will make sure that defendants are treated fairly in my jurisdiction. It is better than 1000 guilty men go free than 1 innocent person sent to jail." Instead it's either "I'm tough on crime" or "The other guy is soft on crime". This is what they've decided the electorate wants in their judges, which leads directly to judges being slanted in favor of prosecutors.
The prosecutors, for their part, are subject to the exact same electoral pressures, and also the pressure of keeping the cops happy so they give the prosecutors good evidence in their cases, so they will do whatever they have to in order to win cases regardless of whether the defendants are guilty or innocent. Part of their tactics is putting defendants in a position where a guilty plea is cheaper (at least in the short term) than attempting to win their case. For example, if the plea-bargained fine is lower than the percentage that would end up going to a bail bondsman (which a defendant loses whether or not they show up in court), then most defendants will opt for the fine and the criminal record even if they aren't guilty, because it's cheaper.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 2) by Scruffy Beard 2 on Tuesday July 26 2016, @03:06PM
Um I though to point of posting a bond is that you lose it if you don't comply with the terms.
If you lose the bond either way, what is the point of complying with the terms? (besides avoiding contempt of court)
If I want to sell things door-to-door were I live, I am required to post a $10,000 bond in case I refuse to give refunds as required by law.
(Score: 2, Informative) by Anonymous Coward on Tuesday July 26 2016, @03:25PM
You get your bail back (which goes back to the bail bondsman), but the bondsman charges a fee and you don't get the fee back. The fee is pretty high, because sometimes people skip bail, and then the bail bondsman is the one who is out the money. Bail bondsmen are up there with payday loans in terms of the fee racket they have, but I'm not putting this on them, they provide a needed service at market rates. (The problem is with the system that creates the need for that service).
If you have enough money to post bond in cash... well, the police will seize it from you, so none of that. If you are rich, of course, you can have your attorney have your bank wire the money, and be out the same day, but rich people don't get arrested for trumped-up drug possession charges anyway.
(Score: 2) by Whoever on Wednesday July 27 2016, @01:54AM
Bail bonds are just another scam conducted on the underprivileged in the USA.
As stated above, the bond may cost a fee of some 10% of the bail amount, but if you go missing, the bond company may only have to actually pay 5%. Yes, even if you skip bail the bond company makes a profit.
(Score: 5, Insightful) by Thexalon on Tuesday July 26 2016, @03:41PM
It's not that you don't get the bond back.
It's that in order to pay the bond, if you don't actually have the money on hand, you have to go to a bail bondsman, and the bondsman gets to keep a fee, typically around 10%. So, if you are an innocent person without a lot of savings caught up in the criminal "justice" system, you might be presented with the following options:
A. Plead guilty to a lesser charge and pay a $750 fine.
B. Leave on bail, which they tell you will be $10,000, so to fight your case will cost you $1000 to the bondsman, and then possibly have to pay a $1500 fine for the original charge if found guilty. Oh, and your public defender won't really be able to help you, so put in $200 an hour for a lawyer on top of that if you want to have a chance.
C. Sit in jail waiting for trial, which can be weeks or months, meanwhile losing your job and everything you own.
Is it any surprise that many innocent people, faced with this choice, will choose option A? Even though that will give them a criminal record for the rest of their life, which will allow completely legal discrimination against them in jobs, housing, loans, and so forth?
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 1, Informative) by Anonymous Coward on Tuesday July 26 2016, @03:41PM
My understanding of bail bond is that you would get the money back from the government. But most people need to go through bail bondsman (i.e. basically take a loan). The fee for the bail bondsman is usually some percentage of the bond (10%?). What the GP was saying is you wouldn't get that back. For example plead guilty, get probation and a 8k fine; or go to court, but have to pay a 100k (~10k to a bondsman) bond to stay out of jail until the trial, and then maybe not win the trial.
If you have enough money for a bond, then it's not as big of a deal to go to trial. But the vast majority of people (probably >90%) are not going to have that kind of money. The plea bargaining system is not only inherently unfair, and even farther from justice than actual trials are, but it also heavily favors the wealthy. And by being heavily stacked against the poor, it will also punish minorities disproportionately.
I haven't looked at the stats, but my guess would be that people who have the money for a cash bond payment and good lawyers, are much less likely to get charged, period. The DA's really do not want to go to trial and if they have less leverage are more likely to let it go.
(Score: 5, Insightful) by sjames on Tuesday July 26 2016, @06:00PM
It's a bit of a dirty sleight of hand. The BOND is refunded once you show in court for your trial as required. The catch is that the bond is set well above what most people can come up with, so you must go to a bail bondsman. He will post the bond, but he will charge you 10% which is non-refundable. If you skip, he will put a bounty on you with a significant reward and you will be hunted down and dragged back so he can get his bond returned..
So if you as an innocent person get arrested for suspicion of trafficking cocaine because a $2 test was used that can't tell the difference between that and OTC cold medicine and the judge says the bond is $100,000 (since you had a whole box of 'narcotics'), you get to either spend a month or 6 rotting while your job and house goes away or you get to be out $10,000 even when the definitive test eventually (read weeks to months later) comes back saying it's cold medicine.
That assumes you HAVE a spare $10K sitting around (many middle class families DON'T). Or perhaps that $2 test costs your kid a college education.
The 'fine' people running the justice system apparently see no problem whatsoever with any of this!
(Score: 2) by Capt. Obvious on Tuesday July 26 2016, @07:34PM
Bond is used in different ways! Yes, the $10,000 bond that you post for selling door-to-door is like you described (although, it's more likely there to pay the sales tax if you skip out, and limited to that).
In getting out of jail, there are three primary ways (any of which can be augmented, e.g. with ankle monitoring). You can be released for free, on the theory that you'll come back. You can be released for bail. That's like the "bond" you described, you get it back when you show up (or someone else gets it back)*. Or, you can post bond. In that case, a third party (bailbondsman) posts the bail on your behalf. You give him a % (usually around 10%). He gets his money back if/when you show. You get out of jail. That 10% is the cost of the service. If you don't show, typically the bailbondsman can get his money back if he delivers you to the court in a time period, say 90 days. To do that, he'll hire a bounty hunter. Because, while he'll lose money on you, he'll lose less than the huge loss of you not showing.
*DANGER: If the court finds you owe money, they will totally take it out of the bail before they return it to you. This makes sense, why return money just to ask for it back. But that means the odds of getting on a payment plan for any money covered by your bail are about zip.
(Score: 2) by Whoever on Wednesday July 27 2016, @01:57AM
Actually, in many cases, this isn't true. In many cases, the bond company only forfeits 5-10% of the bail amount, so it's not worth hiring a bounty hunter. The bond company made a profit anyway. It's a scam.
(Score: 2) by Capt. Obvious on Wednesday July 27 2016, @06:57PM
Citation need.
Because that would seem totally at odds with, well, a lot.
(Score: 2) by GungnirSniper on Tuesday July 26 2016, @04:42PM
Not every US state elects their judges, it seems to be more common in western states. Only the state-wide attorney general and district attorneys here are elected, and unless you do something big they take no notice of your case. The soulless assistant district attorneys handle everything else, pushing papers and threatening jail the same way your cable company will send you into collections for non-payment.
If you're looking for a problem, it is that judges have banned the mention of jury nullification. This disallows citizens from considering if the law is just, if the defendant has been selectively prosecuted, and if the minimum sentences are proportional to the crimes. Judges have improperly limited juries to finding guilt or innocence, effectively preventing those defenses. That's how people end up in cages for victimless crimes.
Tips for better submissions to help our site grow. [soylentnews.org]
(Score: 2) by Thexalon on Tuesday July 26 2016, @08:29PM
Jury nullification isn't a real solution to the problem of an unjust law or unjust legal system.
The reason is that jury nullification only works for defendants at least 1 juror likes personally. Which can be a problem if you're in the Bible Belt with an all-white all-conservative-Christian jury, and you're a gay black Satanist (or the other way around in Castro, for that matter). If nearly everybody can get busted for dope, whether or not they actually have any, but only some people are going to jail for it, then effectively what you've made illegal is not having dope but being a gay black Satanist in the Bible Belt.
And the flip side is also a problem: If juries are routinely nullifying, then defendants at least 1 juror likes can now commit crimes with impunity. This problem isn't theoretical, either, as the families of people who were lynched back in the day can tell you all about.
The real solution to the problem, of course, is to repeal the laws that you'd rather like to engage in jury nullification to make unenforceable. The good news is that the Overton Window (the range of ideas that are not considered political suicide) regarding victimless crimes is shifting significantly. To give you an idea of how significant, Bernie Sanders did very well for himself this election calling for an end to the War on Drugs, and Gary Johnson who is calling for the same thing is also doing better now than any Libertarian candidate before him. I have every reason to believe that pot will be completely legalized within the next decade or so, and I wouldn't be surprised to see opiates and meth and the like begin to be treated more like a medical rather than criminal problem.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 3, Informative) by donkeyhotay on Tuesday July 26 2016, @02:25PM
The way it goes down is this: The police get a false positive on the test, then (at least in my state), they take everything you own via civil asset forfeiture, thus making it impossible for you to afford a lawyer. You're given a choice to plea guilty for a lesser punishment (which allows the cops and the prosecuting attorney to look good), or you go to prison for a harsher punishment.
(Score: 2) by Thexalon on Tuesday July 26 2016, @02:46PM
Out of curiosity, which state are you talking about, so I can avoid living there?
Also, is that for everybody, or just racial and religious minorities? In a lot of jurisdictions, WASPs are exempt from this sort of treatment.
The only thing that stops a bad guy with a compiler is a good guy with a compiler.
(Score: 0) by Anonymous Coward on Tuesday July 26 2016, @03:51PM
Every state except New Mexico and Montana has some degree of civil asset forfeiture abuse. New Mexico prohibits it, and Montana prohibits it unless a criminal conviction has already been obtained. The situation described does seem unusual, though; in most cases, the seizure is limited to what you have with you. There are exceptions, of course; the IRS uses civil forfeiture against bank accounts and financial assets in tax cases, and it's possible for a house to be seized if it was used for a drug operation, but it's much harder to trump these charges up, compared to a traffic stop, for instance.
(Score: 2) by donkeyhotay on Friday July 29 2016, @04:11PM
This is Oklahoma, where the highway patrol is using card scanning devices to take away assets when they stop you. They are getting a huge discount on the equipment via a deal they made with the vendor to give them a percentage of the take. So far it is limited only to certain cards, but they tried to get the ability to scan and take assets via bank cards.
http://www.foxnews.com/tech/2016/06/17/oklahomas-use-card-readers-to-freeze-seize-funds-comes-under-fire.html [foxnews.com]