
Judges Rely on a Flawed $2 Drug Test That Puts Innocent People Behind Bars - ohjeez
https://www.propublica.org/article/common-roadside-drug-test-routinely-produces-false-positives
======
dsugarman
"Suppose a drug test is 99% sensitive and 99% specific. That is, the test will
produce 99% true positive results for drug users and 99% true negative results
for non-drug users. Suppose that 0.5% of people are users of the drug. If a
randomly selected individual tests positive, what is the probability that he
is a user?"[0]

33.2% thanks to Bayes Theorem.

If you have a test with 99% accuracy and 1 in 200 people use the drug, someone
testing positive more likely than not is not using the drug. If the drug is
less popular, that percentage drops further at a fast rate.

[0][https://en.wikipedia.org/wiki/Bayes%27_theorem#Drug_testing](https://en.wikipedia.org/wiki/Bayes%27_theorem#Drug_testing)

~~~
mikeash
Looking at it the other way, even if you have a 99% chance that the positive
result is correct, is a 1% rate of sending innocent people to jail really
acceptable?

~~~
jackcarter
[http://www2.law.ucla.edu/volokh/guilty.htm](http://www2.law.ucla.edu/volokh/guilty.htm)

'"Better that ten guilty persons escape than that one innocent suffer," says
English jurist William Blackstone. The ratio 10:1 has become known as the
"Blackstone ratio.'

~~~
guard-of-terra
We can probably work out a formula then to figure out maximum acceptable false
positives given apparent usage stats.

~~~
wahern
The maxim is much older than Blackstone, and has been variously recited as
2:1, 100:1, 1000:1, etc. The point is that the justice system should error on
the side of protecting the innocent.

It's not quantifiable. It's not a statement of social utility, and no utility
function (e.g. which related community wealth to innocents jailed) could
replace it. The maxim is a bedrock principle of how society defines justice.
It's an articulation of the values and preferences that go into defining a
utility function. That is, how just you _believe_ the government is a utility
in and of itself, regardless of objective efficacy, and the maxim outlines one
of the criteria for how you guage justness.

The notion is that a government that emphasizes protection of the innocent is
believed to be most capable at defending fundamental liberties, in part (in as
much as people rationalize it) because it incentivizes rigor in how government
prosecutes criminals. Putting criminals away benefits everybody, so there's
already substantial incentive to get it done. Imposing constraints on how it's
done allows society to shape the process and, ideally, push it toward a global
optimum rather than falling into a local optimum.

So it's an articulation that society places substantial value on liberty even
if to the detriment of some security. (Compare that to cultures like Japan.)
Second and simultaneously it articulates a belief that security _depends_ on
the protection of liberty; that is, effective governments safeguard liberty,
and those which do not safeguard liberty are unlikely to be effective at
providing long-term security.

Neither of those statements are absolute truths, and they certainly don't
depend on empirical efficacy. They're normative value judgments in and of
themselves, therefore they help define the utility function, both in the
aggregate and of individuals in the society, the vast majority of whom will
have internalized those normative judgments.

------
dewster
Drilling down, past the entire war on drugs nonsense, past the perverse
incentives of plea bargaining, the base problem is our old testament focus on
meting out punishment rather than on rehabilitation.

If I kill someone there's probably something wrong with me, and it's in
everyone's best interests to repair me. If I know that someone I care about is
going to kill someone, I should be able to turn them over to the authorities
without having to worry that they will almost certainly be abused and returned
in worse shape.

Having the term "fuck you in the ass prison" in the common vocabulary and used
semi-humorously or as a reference to the normal functioning of the criminal
justice system is exceedingly troubling.

~~~
busyant
I agree with everything you said, but I feel that a large part of the
population enjoys judging and punishing people.

It's a large and dark part of human nature.

There is a secondary problem as well: true rehabilitation seems incredibly
difficult.

I think we should strive for rehabilitation, but the combination of human
nature and the difficulty of making people better gets us where we are.

~~~
rev_bird
>incredibly difficult

Not to mention very expensive. People hate the idea of spending $50,000 a year
making a rapist into a better person when the government won't pay for their
kids' college instead.

~~~
zeofig
Of course, it costs even more to instead put the rapist in a "privatised"
supermax where he is subjected to various state-funded tortures that quickly
turn him into an even worse kind of animal...

------
stuaxo
Plea bargaining needs to go, it's letting evidence that wouldn't stand up in
court send people to prison.

~~~
imroot
There was a DA who did this in California when he was running for re-election
in the early 2000's -- no more plea bargains. What happened is that the ADA's
workload tripled, they ran out of courtrooms (and had to get courtrooms in
other counties to fill the backlog), and people were released because of their
right to have a speedy trial were being infringed.

While the wheels of Justice turn slowly, plea agreements are the oil that
keeps the wheels turning at all. Think about it -- if you're speeding, and you
know you're speeding, do you really want to take time from a Judge and a
Trooper to have them present evidence to know that you're speeding? Even more
so, if the trooper wrote your ticket so you don't get any points -- just a
fine? Better yet...do you want someone to sit in jail if they're innocent
because he can't afford his bail to sit longer because of all of the backlog?

~~~
alistairSH
_What happened is that the ADA 's workload tripled, they ran out of courtrooms
(and had to get courtrooms in other counties to fill the backlog), and people
were released because of their right to have a speedy trial were being
infringed._

I would argue that is the correct outcome. At this point, we either adjust
policy/law to reduce the backlog (decriminalize drug possession, etc). Or, we
commit to the path of criminalizing everything and tax and spend accordingly.

~~~
limeyx
Indeed. This exposes the true cost of (something more closely approaching)
justice.

People will either pay more taxes to fund it (unlikely) or change their
tolerance of what actions they want prosecuted

------
andrewfong
"Interestingly, we also found that Albritton had pleaded guilty to a 2008
misdemeanor, a D.U.I. conviction in Louisiana, despite breathalyzer results
showing her blood-alcohol level at 0.0. When we asked her about this, she said
that she had caused a collision by pulling onto the wrong side of a two-lane
highway, and because she was guilty of that, she did not protest the other
charges; she’s still unable to explain why she confessed to a crime there was
no evidence she committed."

\---

This. We place too much trust in confessions.

------
pmarreck
I can't see this sort of thing without plugging
[http://www.innocenceproject.org/](http://www.innocenceproject.org/)
(disclaimer: I donate every month). Here's their Twitter:
[https://twitter.com/innocence](https://twitter.com/innocence)

~~~
exolymph
Thank you for the reminder to add them to my monthly donation roster.

------
fisherjeff
I don't understand why this wouldn't treated like a field sobriety test - if
it's positive, just bring in the suspect and the sample. If, after subjecting
it to a more accurate and rigorous test like the mass spectrometer mentioned
in the article, it's negative, the suspect should be free to go.

How something like this isn't happening long before a plea bargain or trial
enters the picture is just beyond me.

~~~
refurb
I was confused by that as well. Field tests are unlikely to hold up in court.
Most labs will re-tested suspected drugs using some pretty reliable techniques
(HPLC-MS, GC-MS, NMR).

Otherwise, all a lawyer has to do is say "Yes it could be cocaine, but it
could also be one of these 80 other compounds that produce positive results on
the field test".

~~~
tedunangst
Field tests aren't admissible in court already.

------
brett40324
"74 percent of the convicted didn’t possess any drugs at the time of their
arrest"

Whats the solution here?

This is an embarassing failure of the justice system and all involved. Why is
it so acceptable for them to do such a bad job?

~~~
bryondowd
Sounds to me like the simplest solution and biggest failure (aside from the
whole concept of criminalization of possession in the first place) is in our
public defender system, which seems to be a much wider-reaching problem. The
fact seems to be that people who can't afford a proper attorney just aren't
getting even marginally acceptable representation in many cases. We need
public defenders with the time, resources, and incentives to actually provide
a reasonable defense and legal advice to people who can't afford a lawyer.

In this case, it seems like a decent lawyer would be able to hear out the
woman's story, and say something like "Hey, the lab will confirm the
substance, so if you're really innocent, you should hold on, because a felony
charge will ruin your life a lot longer than sitting in jail awaiting trial
would." Instead, I'm guessing the lawyer had ten minutes to spend on this case
before he had to move on to the next one, so he can't really do more than push
the plea deal and move along, and there's no significant incentive for him to
do more anyway. In fact, he'd probably get canned if he stopped to take
appropriate time with each client, because then he wouldn't have time to even
get to all of them.

~~~
brett40324
I agree. The responsibility should be that of the defender, prosecuter, and
judge to verify additional chemical tests prior to a plea or trial. The state
prosecution should be required to back up any substance tests in order to
press charges.

This way, the police can still do their job (although a certifiable training
should be required and regulated for the field tests), while having an AGILE
turnaround on immediate test verification analysis - which should be done by a
court laboratory technician within days of initial arrest.

------
guard-of-terra
> The crumb from the floor

> Albritton was charged with felony drug possession

WTF guys, seriously? Possession of a crumb on a floor?

It's not a drug test that's faulty here.

~~~
rayiner
Thank you, 1990s!

------
rayiner
The field drug tests are indeed a scam, but parts of this article don't pass
the smell test.

E.g.

> Albritton was escorted to a dark wood-paneled courtroom. A guilty plea
> requires the defendant to make a series of statements that serve as a
> confession and to waive multiple constitutional rights. The judge, Vanessa
> Velasquez, walked her through the recitation, Albritton recalls, but never
> asked why she couldn’t stop crying long enough to speak in sentences. She
> had managed to say the one word that mattered: “guilty.”

This is called a "plea colloquy." An example is here:
[http://www.vawd.uscourts.gov/media/1966/guiltypleacolloquy.p...](http://www.vawd.uscourts.gov/media/1966/guiltypleacolloquy.pdf).
As you can see, it's a conversation in which the judge must assure herself
that the defendant understands the charges against her, understands the
consequences, and that the prosecution has facts it is prepared to prove at
trial (see question 31).

At least in federal courts, these are very detailed and take quite some time.
I don't know how things are done in Harris County, but an insufficient plea
colloquy is grounds for having the guilty plea set aside later, so judges have
strong incentives to ensure their colloquies are adequate.

So not only is it true that "guilty" is the "only word that mattered," the
article's implication that the judge is only interested in hearing the word
"guilty" is totally at odds with not only the judge's incentives, but the
prosecutor's. What "tough on crime" prosecutor looking to rack up convictions
would leave the door open for a conviction to be vacated just because the
defendant couldn't get through the colloquy?

~~~
btilly
I am always amazed by your trust in our injustice system.

I am sure that all of the filed paperwork for the plea colloquy looks proper.
There was the formulaic set of things to be asked and said, and all were asked
and said. The defendant knew what she had to say to avoid years in jail, and
said them. On an appeal, it would all be in order, and there would be little
chance of the judge being embarrassed by the result.

As for the prosecutor, so few plea bargains are ever appealed that it is in
their interest to plough people through the system as efficiently as they can.
If efficiency gets you 10 more convictions, one of which gets overturned,
you've got 9 more under your belt than you would otherwise. And less than 10%
of these convictions ever get appealed, let alone won on appeal.

Everyone here is acting in accord with their incentives. The police made an
arrest based on an honest belief from chemical evidence. The prosecutor made a
conviction. The judge filed all the right paperwork. The defendant got out of
jail in weeks rather than the threatened years. This is all business as usual.

The result was absolutely and entirely unjust. That is ALSO business as usual.

~~~
rayiner
> I am always amazed by your trust in our injustice system.

Our justice system gets a lot of things wrong. I'm pretty sure I've called the
federal sentencing guidelines "quackery." I don't think plea bargaining is one
of the things it gets wrong.

At one point, it was part of my job to read plea colloquies, in a city that
saw a lot of drug prosecutions. They looked nothing like what the article is
describing. I'm skeptical of the article on the basis of observation and
experience, not faith.[1]

> I am sure that all of the filed paperwork for the plea colloquy looks
> proper. There was the formulaic set of things to be asked and said, and all
> were asked and said.

What goes on file is the transcript of the oral hearing. If, as the article
asserts, the defendant was too much in tears to say anything intelligible
besides "guilty" the transcript would reflect that and you would not have a
proper colloquy.

[1] Relevant:
[https://news.ycombinator.com/item?id=5203871](https://news.ycombinator.com/item?id=5203871)
("Briefly stated, the Gell-Mann Amnesia effect is as follows. You open the
newspaper to an article on some subject you know well. In Murray’s case,
physics. In mine, show business. You read the article and see the journalist
has absolutely no understanding of either the facts or the issues. Often, the
article is so wrong it actually presents the story backward—reversing cause
and effect. I call these the “wet streets cause rain” stories. Paper’s full of
them. In any case, you read with exasperation or amusement the multiple errors
in a story, and then turn the page to national or international affairs, and
read as if the rest of the newspaper was somehow more accurate about Palestine
than the baloney you just read. You turn the page, and forget what you know.")

~~~
btilly
My distrust of the plea bargain system was cemented by the case of Aaron
Swartz. The insane difficulty of fighting a legal case, combined with the very
large difference in penalties between plea bargaining and fighting create an
extreme incentive for people to plea bargain. Whether or not they are guilty.

When we provide that strong of an incentive against trying for justice, we
have to expect unjust results. They won't look unjust from what the judge sees
in the court room. They will be unjust because the person plea bargaining has
been bullied into admitting to a lie.

This is a fundamental problem that happens before you walk into the court
room. Nothing you see in court will indicate how big the problem is. To get a
handle on it you need to do an independent review of a randomly chosen
fraction of plea bargains to see how different the results are from what a
just result would be.

I would be willing to bet a large sum that in a significant percentage of
cases (ie over 10%), the result is unjust.

~~~
rayiner
Most plea bargains are like the Swartz case in an important sense: hard
evidence exists to establish the facts. There was no dispute in the Swartz
case as to what happened. It's not like there was a possibility that someone
else was in that network closet. What was outrageous in that case was the
charges and maximum sentence for what was a clear-cut case of physical and
digital trespassing.

Your 10% figure seems bogus to me. Almost all plea bargained cases are clear-
cut. Security footage of the defendant walking out of the store with the TV.
Cops called to a house as a husband is beating his wife. Stash of drugs found
under the front seat at a traffic stop. That is the bread and butter of the
justice system, not cases where facts or intent can be seriously disputed.

------
habosa
"It is better that ten guilty persons escape than that one innocent suffer"
[0]

This could not be less true in today's America. I encourage everyone here to
read The New Jim Crow (and books like it). Then you'll see how deep the mass
incarceration problem is.

0
-[https://en.wikipedia.org/wiki/Blackstone%27s_formulation](https://en.wikipedia.org/wiki/Blackstone%27s_formulation)

------
Justin_K
Between this kind of stuff and civil asset forfeiture, I'm really disgusted at
what our legal system has become. Let's even throw in red light tickets as a
bonus. All of this crap comes down building a money machine for the
governments that are here to serve us. When will we have a leader with the
ability to end the madness?

------
mslate
Why is the price of the test relevant?

~~~
tedunangst
There's a roundabout implication that perhaps there is a $5 test that's not
flawed, but the government is too stingy to pay for it.

~~~
gaur
Or even worse, government officials like the false positives because more
people can then be funneled into the prison system. The fact that the test is
cheap is just a bonus.

~~~
24gttghh
Or if we were to follow Hanlon's Razor, they're just inept. However, the
article talks about Justice Department seminars where:

>In its curriculum, the technology center states that field tests help
authorities by “removing the need for extensive laboratory analysis,” because
“the field test may factor into obtaining an immediate plea agreement.”

