Judge rules against Massachusetts prison mail drug tests

A Superior Court judge has issued a scathing ruling against the Massachusetts Department of Correction over the way it tests some of the mail prisoners receive from their attorneys for drugs.

For years, prisoners and their attorneys have complained that the test used by the DOC, the NARK II Test, is inaccurate. They also questioned the DOC policy of taking away privileges of detainees whose legal mail initially comes back positive. The prisoners say those punishments include: placing someone in restrictive housing, or solitary confinement; curtailing a detainee's eligibility for parole; and limiting their ability to communicate with counsel.

"The net effect of DOC's continuing use of the NARK II Test is to both subject a significant number of incarcerated persons to unwarranted punishment, and to broadly chill and inhibit the rights and ability of all incarcerated person within DOC facilities to meaningfully participate in their own legal defense," Associate Superior Court Justice Brian Davis wrote in his ruling.

The complaint over the legal mail testing was brought by two men who are or were incarcerated in Massachusetts prisons. The men said they were punished after mail from their attorneys was tested using the NARK II Test and returned an initial positive result for synthetic cannabinoids.

Independent lab testing later showed the substances were not actually present in the mail, but both men were punished for months while waiting for the lab results. The complaint says prisoners are given the option of either accepting responsibility for the positive test and facing lesser punishment, or losing privileges while awaiting more accurate lab results.

Judge Davis allowed the plaintiffs' request for a preliminary injunction against punishing prisoners based on the initial testing.

The DOC, which has been using the tests since 2018, had argued that illegal drugs in prisons are a major security concern, especially synthetic cannabinoids such as K2, which can be sprayed on paper and later smoked. The test manufacturer, Sirchie, has said in a pending federal lawsuit over the tests that they are meant to be presumptive for certain chemicals and must be confirmed by an approved laboratory.

The ruling also pointed out that the DOC did not refute the lawsuit's claims that the tests often do not detect some of the most common type of cannabinoids and the department acknowledged that the accuracy of the testing is in doubt.

"The best information offered is that the NARK II Test returns false positive results approximately 38% of the time, which is only marginally better than a coin-flip," the ruling said.

The DOC said it is reviewing the ruling and "has no further comment at this time."

Ellen Leonida, a San Francisco attorney involved in the suit, said she's glad prisoners can no longer be immediately punished based on the results, and she hopes the DOC will stop using the tests entirely.

"Finally a judge ordered DOC to do something they should have done from the beginning and let people communicate with their attorneys," Leonida said.