Mimesis Law
19 September 2017

Portland DA Won’t Accept Plea Deals Based on Cheap Drug Test Kits

November 30. 2016 (Fault Lines) — Here on the left coast, people are predicting the end of humanity sometime within the next four years. From Washington to California, there are cries to rally and fight the new evil and publications that will publish anything are publishing articles written by just about anyone on how to combat the new regime, how to live in it and how to get over your recently acquired depression.

Meanwhile some real journalists over at ProPublica are likely celebrating the fact that the crappy two dollar drug tests sending thousands of innocent people to jail will no longer be enough for a plea deal in Multnomah County, Oregon. This decision is the direct result of reporting by ProPublica and The New York Times Magazine. These days, if a defendant pleads guilty to possession, the prosecutor has to have the field test results confirmed by a complete lab analysis before that plea can be accepted.

J.R. Ujifusa, the deputy district attorney who oversees drug prosecutions said:

Our DDAs [deputy district attorneys] are always looking to make sure we’re using the very best practices.

It sounds suspiciously like these people are actually seeking justice, A/K/A doing their job. Could it possibly be true? If so, prosecutors across the country should follow suit immediately. Their job is to protect the public from criminals and injustice. Jailing people and forcing them into plea deals enabled by a corrupt bail scheme and faulty drug field testing administered by police officers is a huge injustice.

However, there’s a missing component to this good news, which I’ll get to in a bit.

Courts across the country already do not accept these test kits as sufficient evidentiary proof that a piece of unidentified “stuff” is an illicit substance, so why should it be cause for someone to rot in a jail, lose their home, job, kids, and traumatize their family?

It is a good thing that there has been a rise in so-called conviction integrity units. These panels that look at a case post conviction resulted in nearly 150 exonerations nationwide in 2015. These exonerated people are probably eternally grateful to the folks who took another look at their case. But they shouldn’t have had a case in the first place. Even if they get a monetary settlement (many don’t), it’s too little, too late. The damage is done, they can never get those months, even years, back, or their spouse, or time with their children. All because someone couldn’t or didn’t want to do their job right.

It is disgraceful that a law enforcement officer can pull you over for a traffic violation, then decide based on his questionable “training and experience” that the chunk of donut glaze or food fragment on your floorboard requires field testing. Then, based on the false results of that test, you are locked in a concrete box where you will remain unless you can make bail or until results from a real lab come back.

Not accepting a plea until real results from an actual lab come back is a great start, but that missing component mentioned is the need for a different bail schedule or no bail at all for people caught up in the field testing travesty. Oregon is a state that does not allow independent bail bondsmen. They consider it to be kidnapping.

You have to give up what the court orders for bail. You can post a percentage of the bail, but it’s the judge who decides the bail amount. This bail amount can vary depending on the type of drug you’re suspected of possessing and your past record. For instance, if you have a violent incident on your record, it will increase the bail for your new charge. The same goes for a previous drug conviction.

As of this writing several calls to the Public Defender, Prosecutor, Sheriff and a few local attorneys resulted in no information on whether or not a different bail schedule will be adopted for defendants held on suspicion of drug possession based on field test kits.

As of 2015, the goal at the state crime lab was to have evidence tested within 30 days, but the average turnaround was 65 days. For many defendants, if you can’t afford bail, you are already living hand to mouth and 65 days in jail will effectively finish you off. You’ll be starting from scratch once you hit the street.

Other jurisdictions should be adopting this position and a new bail schedule to go with it, consisting of lowered bail or a citation scheme with no bail. Otherwise it’s just window dressing.

2 Comments on this post.

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  • JoAnne Musick
    30 November 2016 at 10:38 pm - Reply

    Harris County (Houston, Texas) did the same after leading the nation in exonerations for 2015. The elected DA instituted a policy of no plea deals until the lab confirmed the illegal substance. Yet, as you aptly point out, they did nothing to change the bail schedule, resulting in many accused simply sitting in jail awaiting drug results. The lab results take approximately 60-90 days to come back, so many defendants simply sit in jail unable to post bond.

  • Paul Cantrell
    4 December 2016 at 9:48 am - Reply

    A bit of fresh air in a torrent of recent news articles about a judicial system gone mad.

    In my limited experience with the judicial system (thankfully only fighting traffic tickets and as a juror) I have to say that the 1983 movie WarGames had it right when the WOPR supercomputer (in reference to thermonuclear war) concludes “A strange game. The only winning move is not to play”.

    For quite a while I’ve thought that this is also a good description of the experience of a defendant in the US judicial system. At least to a lay person, it seems a bizarre and twisted world where the goal does not seem to be the finding of truth or guilt, but more a plot out of the movie Brazil wherein the behemoth apparatus of the state is used to totally destroy victims who seem to be chosen at random (although in truth it seems “chosen because of race or poverty” in a large percentage of cases).

    Certainly my experience as a juror did nothing to assuage my fears of the system, where it was abundantly clear that information was being withheld from us, without any understanding of why it was being withheld, which made me extremely worried about what verdict to decide knowing that we might be punishing someone on partial knowledge of what was really going on. Truly I feared if we found the person guilty we would then, after the fact, discover evidence that what was presented in court was a distortion of the truth and that we had become hapless conspirators in a system designed to punish the guilty and innocent alike, often to extremes totally disproportionate with the actual “crime”.

    Aaron Swartz comes to mind, as does my family member who, after a roommate (twice his size) breaking down his door, throwing him through a glass table, and otherwise beating him, picked up a bat to defend himself and thus found himself charged with assault with a deadly weapon (and the police uninterested in doing any followup to discover the real details of the case). Lucky for him to have parents of means to hire a lawyer; some poor kid would have rotted in jail no doubt.

    So, articles like this give me some small hope of changes to the system, although the cynic in me thinks it’s unlikely to change much in my lifetime even though we have excellent examples elsewhere in the world to pick from. Still, like the Affordable Care Act, rather than just pick a working system and emulate it, we in the US seem to always need to invent our own bizarre systems, regardless of how monstrous and ill-performing they may be. Or perhaps we are just especially adept at taking a system that was designed to be fair and perverting it until it no longer remotely resembles a fair system with a goal of actual justice.

    When police officers start getting put in jail for attacking & killing unarmed citizens, and DAs stop overcharging and suppressing evidence that could prove innocence, and public defender offices get the same budget as the DA office, and basically we try to design a system that is FAIR rather than EXPEDIENT, then some of my cynicism will perhaps abate.

    Sigh. Rant over.