Court Watch NOLA Executive Director Simone Levine summarizes a new report outside of criminal district court in New Orleans in May 2019. (Michael Isaac Stein/The Lens) Credit: Michael Isaac Stein / The Lens

Judges in Orleans Parish Criminal District Court may be punishing people — with fines, increased bonds or jail time — based on a flawed drug testing procedure, according to a new report by Court Watch NOLA. The report, released Wednesday by the watchdog group, found that the drug testing lab does not follow scientific best practices when doing drug screens, failing to adequately confirm test results and avoid false positives.

The court’s use of these questionable drug tests on defendants “appears to be a common occurrence” in New Orleans, the group said. And research cited in the report indicates that such testing — which comes at a cost to taxpayers — may not reduce recidivism. Still, the group identified dozens of cases where people went to jail for contempt after getting a positive drug test.

Court Watch found that sanctions handed out by judges based on positive drug screens are “inappropriate, inconsistent, and inequitable.”

“That’s the reason why we ask that judges really consider, in an individual capacity, whether drug testing is really meeting the needs that they feel are a priority in individual cases,” Court Watch Director Simone Levine said in an interview with The Lens. “What are those needs? Is it making us safer to drug test people?”

National drug testing standards call for court-issued drug tests to be done in two steps: screening and confirmation, the report says.

But in New Orleans, the court’s lab does not confirm initial positive screen results with a second test using an alternative method, which should be done to eliminate false positives. The confirmation of drug screens is typically done using a process called gas or liquid chromatography-mass spectrometry (LC-MS/MS). According to the report, however, “the Lab lacks any equipment capable of performing definitive drug tests such as LC-MS/MS and there is no indication that drug testing samples are sent off-site to confirm presumptively positive test-results.”

Instead, the lab’s own policy manual describes the confirmation step as retesting the same sample, using the same method as was used in the initial screen. According to the Court Watch report and medical experts, that procedure does not ensure that false positives will be eliminated.

”What they’ve conflated is a laboratory confirmation versus something that is medically and clinically relevant.”—Dr. Arwen Podesta

In a review of 11 case files in which defendants were held in contempt for a positive drug screen, Court Watch found nine cases that did not show that re-tests were conducted at all. Judicial Administrator Robert Kazik, however, told the group that the lab automatically retests positive results, producing only one report per case file. In the two remaining cases, the lab re-tested using a second sample, which the report describes as “contrary to scientific best practices, which require confirmation using a different testing method on the same sample.”

“This is not a clinical confirmation; it’s a lab confirmation,” said Dr. Arwen Podesta, a New Orleans-based psychiatrist who has worked with the Orleans Parish drug court. “What they’ve conflated is a laboratory confirmation versus something that is medically and clinically relevant.”

The screening test done at the Criminal District Court is called a urinalysis immunoassay. Podesta compared punishing defendants for a positive immunoassay screen without doing a confirmation such as LC-MS/MS, to performing a mastectomy based on the results of a mammogram without confirming them using a biopsy or something similar.

According to the Drug Court Judicial Bench Book, a set of guidelines put out by the National Drug Court Institute, unless a defendant admits to using the drug identified by an immunoassay screening, a confirmation of positive results should be “mandatory.”

Despite the questionable confirmation methods used by the drug lab in the Criminal District Court, a positive screen can have serious consequences.

Court Watch NOLA found at least 77 examples in which defendants were held in contempt and sanctioned by a judge for a positive drug test in 2018. Fifty-nine of those defendants spent time in jail as a result, for an average of 18 days.

772018 cases where defendants were sanctioned based on a drug test59Defendants jailed in 2018 based on a drug test

In one case, a defendant was jailed for 34 days for contempt of court after screening positive for marijuana. That is more time than many people face after being convicted of possession of a small amount of marijuana. State law imposes a 15-day sentence for a conviction for first-time marijuana possession. And if charged under city code, a first-time conviction results in a $40 fine.

“I have had so many clients put in jail for drug test results over the years, and quite a few of them have sworn up and down that the results are not accurate,” said Laura Bixby, an attorney with the Orleans Public Defenders Office. She said that sometimes her clients who tested positive were even being given drug tests in different contexts, such as through their job or probation, and on those tests they were getting different results.

‘The responsibility of the court, and ultimately the judge…’

Mandating drug screens of defendants in New Orleans Criminal District Court is a common practice, says the Court Watch report. In 2018, according to Court Watch volunteers’ observation, the magistrate judge or  a commissioner — presiding over first court appearances — conditioned defendants’ pretrial bail release on a drug test six percent of the time. Once a defendant is formally charged by the Orleans Parish District Attorney, the case is assigned to a Criminal District Court section. And the judge in that section may mandate drug testing as well, even for those cases where it was not made a condition of bail at first appearance. If a defendant fails a drug test, they can be held in contempt and sanctioned by judges.

It is unclear how many drug tests the lab performs every year, but in a 2016 court testimony a technician from the lab estimated that he had done 200 drug tests in a single morning.

Judge Benedict Willard, in Section C, most frequently held defendants in contempt for failing drug tests in 2018, based on Court Watch’s report. Willard held at least 56 defendants in contempt, with 49 of them receiving jail time that averaged 20 days.

The Lens was unable to reach Willard for comment on this story.

According to the Drug Court Judicial Bench Book, “When drug testing is performed on site, within the purview of the court, it becomes the responsibility of the court, and ultimately the judge, to guarantee that the testing is accomplished in a forensically acceptable manner.”

“I think people have tried to educate them,” Bixby said of the judges. “None of us are scientists, but we’ve tried to explain to the best of our knowledge why these tests might not be accurate.”

“I think the judges think that these tests are like foolproof, gold-standard,” she added. “That’s how they treat the results.”

It is unclear how many people may have been incarcerated, fined, or otherwise sanctioned based on a false-positive screen. The 77 identified by Court Watch “represent the minimum number of 2018 contempt cases,” the report says.

”I think the judges think that these tests are like foolproof, gold-standard.”—Laura Bixby, public defender

Kazik told The Lens that the lab keeps positive results for three months, and that defense attorneys are free to challenge them by having them tested at another lab.

“I’ve really never seen anyone challenge the results before,” Kazik said. “I think that they just take it at face value. Maybe because in fact they’re guilty, and have some sort of drug in their system.”

But Bixby said that the onus should not be on the defendants or the defense attorney’s to show the reliability of the results when the methods being used are questionable.

“While it may be hypothetically possible for us to take a sample and pay to have it go tested elsewhere, our client would sit in jail in the meantime if they’ve been remanded,” said Bixby. She also pointed out that it would cost a substantial amount of money for the Public Defender’s Office to have the samples tested at another lab.

“I think if the court wants to drug test people, and take action based on those results, then the burden should be on them to pay for reliable testing and ensure that the test accurately shows whether or not someone has been using drugs before they put them in jail,” Bixby said.

”I think that they just take it at face value. Maybe because in fact they’re guilty, and have some sort of drug in their system.”—Judicial Administrator Robert Kazik

The Court Watch report makes similar recommendations.

“Judges should not sanction defendants without proper testing that follows scientific best practices,” the report concludes. “The Drug Testing Lab should research available definitive confirmation testing options. Once the Lab has a scientifically-accepted procedure in place, the Lab should execute its procedures consistently in every case.”

‘A heavy tether to the criminal justice system’

The Court Watch report also questions the constitutionality, efficacy, and financial costs of drug testing pre-trial detainees at the Criminal District Court.

Defendants are forced to pay for their own drug tests — $10 for Orleans Parish residents, and $25 for people from out-of-town. Those costs go to running the drug lab, and according to the report, in 2018 came out to $74,233. The cost of running the drug lab last year, however, was at least $350,126.

”These are defendants that have the right to privacy, have the right to be free of search and seizure. These are pre-trial defendants that have not been convicted of any offense.”—Simone Levine, Court Watch NOLA

“Who actually pays these costs inevitably? The answer is we do,” said Simone Levine, the Director of Court Watch NOLA. “At the end of the day, we as taxpayers really do have a voice in this process.”

Levine also brought up questions of constitutionality when subjecting defendants who have yet to be convicted of anything to drug testing.

“These are defendants that have the right to privacy, have the right to be free of search and seizure,” Levine said. “These are pre-trial defendants that have not been convicted of any offense.”

The report also cites a number of studies that question the effectiveness of drug-testing defendants as a way to reduce recidivism.

“Requiring lots of meetings, drug tests, and so on can complicate a client’s life, making it more difficult to get to work or school or care for family members (meetings are often scheduled at inconvenient times and may be far away),” says a review of studies by the Brookings Institution, quoted in the report. “A heavy tether to the criminal justice system can also make it difficult for individuals to move on, psychologically.”

During a recent panel discussion on criminal justice in New Orleans, Judge Keva Landrum-Johnson echoed those views, saying she doesn’t place any conditions on defendants who are first-offenders.

“I don’t give people a bunch of conditions that I think people will fail,”  she said. So, honestly, if you’re a first offender, I am not going to give any conditions. I don’t— I don’t mandate drug tests. I don’t mandate GEDs. I don’t mandate those things, because I don’t want people to not be successful.”

Nick Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...