State Supreme Court updates standards for drug courts throughout the state to require confirmation testing

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Louisiana’s highest court updated its drug testing standards for drug courts throughout the state to mandate that they have a confirmation testing process in place, administered by an outside, independent laboratory, that conforms to best practices. Judges received notification of the Louisiana Supreme Court’s standards last week, according to a Supreme Court spokesperson.

If followed, the new standards will change how drug testing is done in New Orleans’ drug court — part of Orleans Parish Criminal District Court — and the recourse participants have when presented with a drug screen that they say is inaccurate.

While one public defender told The Lens that drug court only accounts for a small number of drug screens at Criminal District Court, she hopes that all Orleans Parish judges will adopt the standards when they mandate drug tests.

If any drug court in Louisiana fails to abide by the standards, they could have their funding reduced or discontinued by the Supreme Court Drug and Specialty Court Office.

In May, the watchdog group Court Watch NOLA released a report that was critical of the drug testing procedures used at Criminal District Court in Orleans Parish, which they said fails to do sufficient confirmation testing on initial drug screens in order to eliminate the possibility of false positives.

The group found that punitive responses by New Orleans judges — including jail time, fines, and increased bonds — to initial positive screens were “inappropriate, inconsistent, and inequitable.”

Drug courts, typically reserved for nonviolent drug offenders, focus on treatment and supervision rather than punishment. Orleans Parish Criminal District Court first established a “drug court” in the late 1980s, but according to media accounts from the time, it had a different function: fast-tracking a backlog of drug cases. The city’s rehabilitation-centered drug court started about a decade later.

In New Orleans criminal and drug courts, drug testing has been done at a lab inside the court using a technique called immunoassay. According to the national Drug Court Judicial Benchbook, immunoassay screens produce only presumptively positive results, and should be verified using another testing method if a participant disputes those results.

But in Orleans Parish Criminal District Court, individuals who are drug tested have not been offered the possibility of having drug screens confirmed by an alternative method done by an outside laboratory. Instead, the screens have been confirmed in the courthouse lab by retesting the same sample, using the same method. Court Watch and others have criticized that method as not being scientifically valid.

The new Supreme Court standard requires that the confirmation process in drug courts use “GC-MS, LC-MS-MS, or another similar chromatography confirmation method,” which was recommended by the Court Watch report.

According to the Drug Court Judicial Benchbook, GC-MS “is recognized as the definitive confirmation technology” and provides a “chemical fingerprint identification” of the drugs in a person’s system.

It is unclear how the Orleans Parish drug court plans to adjust its policies regarding drug testing, what outside lab will be contracted to do confirmation testing, or who will take on the additional costs.

Rob Kazik, judicial administrator for Orleans Parish Criminal District Court, said the court is currently working with the judges to come up with new policies to abide by the standard, but so far there haven’t been any changes.

In a statement to The Lens, Court Watch NOLA praised the new standard.

“When we discovered that our courts were using scientifically unreliable drug testing methods — and then over-incarcerating defendants based on these methods — we were alarmed. Today, we are pleased to see the Louisiana Supreme Court requiring scientific best practices in drug testing.”

‘Sending a signal’

Court Watch found that dozens of individuals were sanctioned in 2018 based on unconfirmed positive drug screens. While the group did not do a full analysis of how many took place in drug court, data collected for the report and shared with The Lens describes at least three instances in which drug court participants were held in contempt of court. One participant spent 15 days in jail as a result.

But in New Orleans, people are also regularly drug tested as conditions of bond and probation. The new standard issued by the Supreme Court does not apply to drug testing in those circumstances.

Orleans Parish public defender Laura Bixby said that while the majority of drug testing occurs outside of the drug court setting, the new standard could encourage judges to re-evaluate their use of drug testing more broadly.

“I hope that the judges look at these guidelines, and although they’re not binding on anything other than drug courts, that they reform their use of drug testing in all contexts,” she said.

“I think the Supreme Court is sending a signal that procedures need to be better if they are going to be imposing consequences on people as a result of whatever the drug testing shows.”

Dr. Arwen Podesta, a New Orleans-based psychiatrist who has worked with the Orleans Parish drug court, called the updated standards “fabulous.”

“This is the step to getting drug testing to be real data instead of data that could have significant false positives or false negatives,” she said. “Getting data that is true and validated without false positives is essential if you are going to use that data for punitive reasons — to take away someone’s livelihood, or freedom. It needs to be real data.”

‘We’ll be in the courts’

Drug courts are offered to people charged with crimes who have drug or alcohol addiction, and combine community-based treatment, rehabilitation and educational programs in an effort reduce a person’s dependence on substances. Each participant is monitored by a judge and regularly drug tested to monitor abstinence and determine sanctions and incentives.

“The imposition of sanctions can be traumatic for clients and can even be disturbing for court professionals with vested interests in their clients’ success, particularly if there are concerns about the validity of the test results,” says the Judicial Handbook. “The confirmation of positive test results provides a large measure of confidence to the court’s decision-making process and allows the judiciary to sanction clients without fear of wrongful or inappropriate penalties.”

There are 49 drug courts throughout the state, according to a spokesperson for the Supreme Court. It is unclear how many of them already offer GC-MS or similar confirmation testing.

In New Orleans, six judges participate in drug court — including one mental health court that is considered a leg of drug court.

The Supreme Court has monitors that visit courts once a year to evaluate drug court programs to ensure they are in compliance with standards. If a program is found in non-compliance with any of the standards, they must come up with a corrective action plan within 30 days.

Court Watch NOLA also plans to stay on top of drug testing at Tulane and Broad.

“This is a step in the right direction,” the group said in its statement. “Moving forward, we’ll be in the courts ensuring enforcement of these new standards.”

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