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THURSTON COUNTY Columbia Legal Services (CLS) filed a class action complaint against the Washington State Department of Corrections (DOC), challenging the widespread practice of imposing harsh discipline on people in DOC facilities based on unreliable drug testing. People have faced months in solitary confinement, delays in release from prison, loss of visitation, and other cruel punishments after colorimetric tests have returned “presumptive” positive results on incoming mail and other possessions.
Clifton Bell, et al. v. Washington State Department of Corrections, filed in Thurston County Superior Court on September 22, 2023, alleges that DOC’s actions violate plaintiffs' rights under Washington State law and the Washington State Constitution.
Plaintiff Gregory Hyde was placed in administrative segregation (another term for solitary confinement) for almost five months after a presumptive positive test result. The item that tested positive for drugs was a packet of crossword, word search, and Sudoku puzzle books sent by Mr. Hyde’s father and stepmother.
“I think DOC is using its power to punish people who can’t fight back,” said Mr. Hyde. “My elderly father just wanted to send me some puzzle books. Now they’re saying he’s a drug dealer. Now my father is too far away to see because I got transferred to a different facility. My father is impoverished and on a fixed income. I think it’s an abuse of power. I don’t think DOC should be doing this.” After facing months of irreversible disciplinary actions, DOC returned the books in question to Mr. Hyde with no explanation or expungement of the infraction. His father’s name remains on DOC’s records as having mailed drugs to the prison.
Manufactured by companies like DetectaChem and MMC International, the colorimetric tests (also called roadside tests or field tests) are designed to be initial screening tests and the manufacturers are clear that they require confirmatory testing to be valid.
Similar test technologies have been found unlawful in many settings, including in other state prison systems. In 2021, a Massachusetts court forced that state’s DOC to stop using similar colorimetric tests from another manufacturer, with the court describing them as “only marginally better than a coin flip” at identifying drugs. The tests in that case were found to deliver false positives nearly 40% of the time.
Matthew Ross, another plaintiff in the case, had a box of paperwork confiscated from his cell just a month ago. DOC swabbed two pieces of paper from the box using the DetectaChem field test which indicated the papers were “possibly” positive for synthetic cannabinoids (also known as “Spice”). The two pieces of paper tested were copies of his childhood immunization records and high school transcript, which had been mailed to DOC about a year earlier by Mr. Ross’s mother, at DOC’s request. DOC’s Incident Report, written by a DOC officer, nevertheless conclusively said: “Based on my training and experience, along with the positive test results, the white paper is Spice.” DOC lodged a Serious Infraction against Mr. Ross which could have extended his time in prison for more than two months at a cost to taxpayers of around $174.00 per day. DOC had previously punished Mr. Ross for an old handwritten letter sent by his friend, a college librarian, which DOC said was also “presumptive positive” for Spice.
CLS complained to the Attorney General’s office on Wednesday, September 6, 2023 about DOC’s new accusation against Mr. Ross. The next day, DOC did an abrupt about-face and released Mr. Ross from prison (with no re-entry plan or place for Mr. Ross to go), returning his seized paperwork as he left prison. In response to threats of litigation, DOC has agreed to revise their testing policy, but the policy change proposed by DOC is insufficient to prevent future punishment based on “presumptive positive results.” The policy change also fails to clear all discipline for people previously harmed by these inaccurate tests.
Other items that have tested presumptive positive include scraps of paper found near a plaintiff’s belongings and greeting cards sent directly from an online card vendor, with discipline including: months of solitary confinement; transfers to facilities with heightened restrictions; loss or destruction of mail or personal property; loss of work release or in-prison jobs; loss of access to recreation or education; restrictions on phone use; and loss of visitation with family and others.
Family members and friends who have sent mail that tested presumptive positive have been stripped of their rights to visitation and communication with their loved ones. Their names may remain on DOC records as having introduced illicit substances into correctional institutions and they have no right to challenge these findings or to demand secondary testing.
DOC’s actions are unjust and unconstitutional,” said staff attorney Alison (“Ali”) Bilow, the team lead on the case. “DOC’s repeated and prolonged use of solitary confinement before and after any infraction hearings is inhumane. Prolonged solitary confinement is internationally recognized as a form of torture. DOC must be required to stop its use of these cheap tests to unfairly punish people, especially with its barbaric use of solitary confinement.”
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