NYS Prisoners Punished for 'False Positive' Drug Tests - Including for Synthetic Cannabinoids

By Bill Weinberg

An official study in New York reveals numerous false positives in drug tests carried out by the state prison system, with hundreds of inmates punished (sometimes quite harshly) for imbibing that did not actually take place —including for cannabinoids.

It’s a cruel irony: even in states that have legalized cannabis, those already incarcerated continue to face punitive measures for cannabis-related violations.

A newly issued report by the New York State Inspector General found that even as the state's cannabis legalization bill was being debated in Albany, prisoners were subjected to solitary confinement and denied family visits because of faulty drug tests—and one of the key substances flagged in “false positives” was synthetic cannabinoids.

False positives ruin lives

Inspector General Lucy Lang announced the findings of the investigation at a Jan. 4 press conference at Albany's Empire State Plaza. The report revealed that the Department of Corrections & Community Supervision (DOCCS) administered faulty tests that brought back “rampant false positive” results for buprenorphine, an opioid used to treat addiction, as well as synthetic cannabinoids.

Hundreds of prisoners got false positive drug test results in 2019, which led to punitive measures that jeopardized their release dates or placed them in solitary confinement. The problem reportedly began in October 2018, when DOCCS awarded a five-year contract for drug testing inmates in New York State prisons to a company called Microgenics.

Since 1999, DOCCS had been using test kits from Siemens Healthcare Diagnostics, and department policy required a second test to confirm a positive result. And this policy continued to be mandated by responsible practice principles even after the new contract. “The manufacturer instructions clearly indicated that these [Microgenics] tests are only designed to provide preliminary results. And that any positive results should be verified using a second more sensitive method,” Lang said, according to Albany’s News10.

Yet this protocol was abandoned when DOCCS switched company contracts. DOCCS began using Microgenics urinalysis kits across its 52 facilities in January 2019—and also dropped the previously established policy of double-checking positive results. “As soon as DOCCS began using the Microgenics tests, they saw a spike in positive tests,” Lang said.

The New York Times coverage of the Inspector General’s report provided some harrowing examples of the consequences that the false positives had for inmates.

One woman at Albion Correctional Facility, located outside Rochester, who had never tested positive for drug use during her two years of incarceration, suddenly tested positive for synthetic cannabinoids. As punishment, she was confined to her cell for 40 days, and placed in solitary confinement for 45 days. She lost her prison job and was denied privileges such as recreation time, receipt of packages, and phone use for months. Worst of all, she was denied visits with her three children.

“This stands as a heartbreaking example of how the absence of transparency can undermine due process and basic human rights,” Inspector General Lang said about the Albion case.

Corporate irresponsibility, citizen action

The Inspector General’s report had harsh findings for Microgenics,finding that the corporation failed to disclose internal research documents that uncovered issues with its urinalysis test. Microgenics’ internal research revealed that even taking an antacid pill for heartburn or using a sugar substitute such as stevia in coffee could result in a false positive. The report accused company representatives of providing false or misleading information to DOCCS officials.

And it was only pressure from citizens that brought this malfeasance to light. As tests were administered to thousands of inmates across New York’s prisons, letters and calls from those who had received false positives flooded advocacy organizations.

“They were absolutely panicked,” Bianca Tylek, executive director of Worth Rises, a group seeking to dismantle the prison-industrial complex, told News10. “They knew that the consequences of these false positives was huge.”

It was Prisoners’ Legal Services of New York that brought the inmates’ concerns to the attention of DOCCS in June 2019. In response, the department sent six positive test samples from other prisoners to a second company for retesting—five came back negative. DOCCS then alerted the Inspector General’s office.

Karen L. Murtagh, executive director of Prisoners’ Legal Services of New York, told The New York Times: “The psychological and physical damage caused by solitary confinement, the loss of family visitation, the lack of proper programming, lost work-release and educational opportunities, all of which help combat recidivism, adds to the ledger for which we as a society need to take account.”

Added Tylek to News10: “How do we put a value on that missed call? An extra day in solitary? An extra day in prison? However we do, DOCCS and Microgenics must be responsible.”

During the eight-month period the Microgenics tests were in use, more than 1,600 New York inmates were punished over drug tests statewide, including 140 who were placed in solitary confinement, according to the Inspector General's findings. DOCCS ultimately moved to expunge more than 2,500 disciplinary records that were based on the faulty drug tests. The state’s prisons are no longer permitted to use solitary confinement as a punishment for positive drug test results.

Several lawsuits related to the false positives are now pending against both DOCCS and Microgenics, a California company which appears to have recently changed its name to ThermoFisher Scientific.