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State prison system uses 'unreliable' drug test to screen mail in violation of court order, complaint says

The Massachusetts Department of Correction has continued to use an unreliable drug test to screen prisoners' mail in violation of a court order, according to a lawsuit in state court.

The complaint, brought by attorneys on behalf of prisoners, alleges the state prison system has punished prisoners for sneaking drugs through the mail based on dubious test results or cursory visual inspections. It also claims some of the mail improperly flagged for drugs was sent by the prisoners' own attorneys, other courts and the attorney general's office.

"The DOC's actions were not only interfering with the attorney-client relationships of the people whose mail was seized and photocopied, but were chilling the ability of all incarcerated people to communicate with counsel for fear of being subjected to this arbitrary and severe punishment," the complaint said.

The attorneys who brought the complaint are asking a judge to hold the Department of Correction in contempt for flouting the court's order in December of last year to stop using the drug test. A hearing on the matter is scheduled for Tuesday in Suffolk Superior Court.

The complaint alleges the Department of Correction has relied on a drug test called, the NARK 20023 or Nark II, which they called "inaccurate and unreliable." Late last year, a Superior Court judge found the test is "only marginally better than a coin-flip" at detecting drugs in mail and should not be used.

The test is intended to identify the presence of synthetic cannabinoids, often known as "K2," which is sometimes smuggled into prison as a coating on a paper. It's believed that someone could then smoke the paper to get high.

Prisoners caught receiving tainted mail can face punishment, such as a loss of privileges, curtailed eligibility for parole, or placement in restrictive housing or solitary confinement.

The Harvard University Prison Legal Assistance Project, recently wrote a letter to dozens of members of the state's legal community warning that the state often flags legal mail for containing suspected drugs. The letter warned lawyers that if there is a positive test for synthetic cannabinoids, the attorney who sent the mail faces discipline as well.

"The Department of Correction is casting quite a wide net in its search for synthetic cannabinoids in the mail," said Joel Thompson, supervising attorney for the Harvard Prison Legal Assistance Project. He said his office has received at least 40 requests for help with legal mail and K2 allegations over the past two years.

Thompson also said the state is relying too much on just a visual inspection from an officer without any corroborating evidence that the prisoners are trafficking drugs.

"Our clients are under 24/7 surveillance and monitoring, and we would ask 'Do you have any other indication that they're actually importing K2 into your prison?' " Thompson said. "And they don't."

A separate legal complaint against the manufacturer of the NARK II test is pending in federal court.

Both the Department of Correction and the Executive Office of Public Safety and Security assured public defenders the screening process would improve, said Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state's public defender agency.

"The meeting was productive, and assurances were made that there would be good-faith efforts made to ensure that legitimate, attorney-client mail is not flagged and used as a mechanism to punish our clients," Benedetti said.

Related:

Deborah Becker Twitter Host/Reporter
Deborah Becker is a senior correspondent and host at WBUR. Her reporting focuses on mental health, criminal justice and education.

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