Judges Rely on a Flawed $2 Drug Test That Puts Innocent People Behind Bars
propublica.org
propublica.org
33.2% thanks to Bayes Theorem.
If you have a test with 99% accuracy and 1 in 200 people use the drug, someone testing positive more likely than not is not using the drug. If the drug is less popular, that percentage drops further at a fast rate.
[0]https://en.wikipedia.org/wiki/Bayes%27_theorem#Drug_testing
QED this isn't good enough to arrest people in America.
That said, this article made me sick. It's obvious that the system is failing here, probably due to a combination of factors, including a lack of understanding of the accuracy of these tests as well as the filtering used to select who and what gets tested. Even if your test was 99.99% accurate, if officers spend all day gathering crumbs from people's cars and submitting them, and you end up with hundreds of millions of innocent samples to thousands of actual drug samples, you wind up with tens of thousands of false positives. So what we really need is corroborating evidence to get a sample set more skewed toward actual positives. Or just give up and stop trying to enforce possession laws.
If the offender is from out of town and skips that is unfortunate but not as unfortunate as wrecking peoples lives.
small percentages adds up scary fast over continents
I expect it would be highly optimistic to even assume a person targeted by police is even three times as likely as the general population to be in possession of drugs, which would only be about 60%
'"Better that ten guilty persons escape than that one innocent suffer," says English jurist William Blackstone. The ratio 10:1 has become known as the "Blackstone ratio.'
It's not quantifiable. It's not a statement of social utility, and no utility function (e.g. which related community wealth to innocents jailed) could replace it. The maxim is a bedrock principle of how society defines justice. It's an articulation of the values and preferences that go into defining a utility function. That is, how just you _believe_ the government is a utility in and of itself, regardless of objective efficacy, and the maxim outlines one of the criteria for how you guage justness.
The notion is that a government that emphasizes protection of the innocent is believed to be most capable at defending fundamental liberties, in part (in as much as people rationalize it) because it incentivizes rigor in how government prosecutes criminals. Putting criminals away benefits everybody, so there's already substantial incentive to get it done. Imposing constraints on how it's done allows society to shape the process and, ideally, push it toward a global optimum rather than falling into a local optimum.
So it's an articulation that society places substantial value on liberty even if to the detriment of some security. (Compare that to cultures like Japan.) Second and simultaneously it articulates a belief that security _depends_ on the protection of liberty; that is, effective governments safeguard liberty, and those which do not safeguard liberty are unlikely to be effective at providing long-term security.
Neither of those statements are absolute truths, and they certainly don't depend on empirical efficacy. They're normative value judgments in and of themselves, therefore they help define the utility function, both in the aggregate and of individuals in the society, the vast majority of whom will have internalized those normative judgments.
YES, almost all doctors and judges will tell you 99% success rate is worth it. It takes a lot of work to educate them this paper 1% translates into 66% error rate in the field.
This is slightly off topic, but I can never remember what "specificity" and "sensitivity" are supposed to mean in this context. I wish people (Wikipedia editors included) would stop using these opaque words, and instead just say in plain English what probabilities they're referring to.
It's almost as bad as "type 1 error" and "type 2 error", which are terms that are actively hostile to building an understanding of statistical inference.
[1] http://betterexplained.com/articles/an-intuitive-and-short-e...
With this rationale, I suppose lawyers would also advise their clients to not enter a plea bargain agreement?
Genuinely curious, hoping someone could shed light on this.
/s
If I kill someone there's probably something wrong with me, and it's in everyone's best interests to repair me. If I know that someone I care about is going to kill someone, I should be able to turn them over to the authorities without having to worry that they will almost certainly be abused and returned in worse shape.
Having the term "fuck you in the ass prison" in the common vocabulary and used semi-humorously or as a reference to the normal functioning of the criminal justice system is exceedingly troubling.
Its a rape joke. And that's just as disgusting as making fun of the lady who was raped behind a dumpster. Except, these are usually men who are raped. And they "deserved" it, by whatever crime the were found guilty of.
Problem being that most people live in a fantasy world where those bad people would never return.
It's a large and dark part of human nature.
There is a secondary problem as well: true rehabilitation seems incredibly difficult.
I think we should strive for rehabilitation, but the combination of human nature and the difficulty of making people better gets us where we are.
Not to mention very expensive. People hate the idea of spending $50,000 a year making a rapist into a better person when the government won't pay for their kids' college instead.
People only want to mete out punishment to people in the out-group, not to people in their community.
The late criminal law professor William Stuntz compiled an incredible amount of historical conviction data for his book, "The Collapse of American Criminal Justice". What he found is that conviction rates have been steadily increasing for the past 200 years.
One of the threads he identifies is that when the jury has a personal interest in leniency or rehabilitation of the defendant, they're lenient. Leniency was much more common 100 years ago, and took a nose dive in the mid- and late-20th century.
For example, the conviction rate and severity of punishment of black men in the Deep South was comparatively low both during slavery and during Jim Crow. Why? Because black men were generating income for whites, either as slaves or sharecroppers. Convictions and jail time were disruptive. (The exception that proves the rule is when the state began to sell prison labor, though the effect was attenuated--juries' economic relationship to the prison labor system was more remote.) Now that black men have been so thoroughly excluded from the labor market, it should be no surprise that conviction rates and severity of punishment have outpaced that for other groups, even after accounting for racial animus. (Or rather, racial animus is unchecked when you don't even have any meaningful economic or social interest whatsoever.)
Another example is immigrant communities. Because of the configuration of populations in urban areas as well as historical court systems, jury pools were often drawn from the same ethnic community as where the defendant committed his crime. It might seem counter-intuitive, but the same community that suffered most directly from a crime also tended to be much more lenient. Even conviction rates on crimes like homicide were ridiculously low compared to now. Why? Because 1) juries were more understanding of extenuating circumstances (i.e. a bar brawl where everybody know the deceased had it coming) and 2) because they knew that sending the defendant away, especially if they were the bread winner of a family (son, husband), would be detrimental to the well-being of that family and even the community (i.e. they come back hardened by prison). The OJ Simpson trial is a rather grotesque example of this phenomenon which most white people can't even begin to understand, and it doesn't help that the victims were white. But the general pattern (not the motivations) was common historically even when the victim came from the community.
With white flight to the suburbs and with the centralization of courts, modern jury pools are drawn from many different local communities, and disproportionately from communities economically and culturally more removed. These communities are afraid of crime spreading, and are more likely to want to send a message by being harsh. And because the defendant is unlikely to come from their community, they're much more removed from the externalities caused by harsh sentencing, either of the individual case or from systematic harsh sentencing. Though the externalities are significant in the aggregate and clearly effect all of us.
And I think the opposite phenomenon is also possible--that is, an overcorrection to being too lenient. In the case of California's decriminalization of drugs, many people have been arguing that some amount of jail time is absolutely critical (for various complex reasons) in helping with rehabilitation. But people who don't see the drug culture up close don't understand the nuances. So we're likely to see big shifts from being too harsh to being too lenient. Without the social and economic relationships, feedback is too attenuated. People can't understand the situation, nor do they have any specific interest--mostly they're following abstract arguments and trends.
I mean, you'd have to come up with some sort of reliable test for what abusing the system is. That means you'd essentially have to have rules for prosecutors' discretion, which sort of defeats the idea of discretion.
I understand the ideal of plea bargains, but I can't think of how to make them work without inviting bad situations, particularly for those that suffer more from drawn out litigation or have reason to suspect the system wouldn't find them correctly innocent.
It's easy to find terribly egregious scenarios, but plenty of others become quite subjective, and yet still very manipulative. Honest question, do you have a proposed solution that doesn't remove plea bargains entirely?
No it doesn't. Their discretion for who and what to prosecute are already limited by the criminal code created by the relevant legislature. Judges have a lot more discretion than prosecutors but they too are limited by a variety of factors including minimum sentencing laws and public pressure (since many are elected).
Besides, prosecutors already have too much discretion if they can use false positive tests and the threat of a jury sentencing to bully innocent people into becoming felons.
> Honest question, do you have a proposed solution that doesn't remove plea bargains entirely?
There are a number of solutions, just look at the Wikipedia page on plea bargaining [1]. Plea bargains are illegal in countries like Denmark and severely restricted elsewhere like the UK and Estonia. This is trodden territory.
> There are a number of solutions...Plea bargains are illegal in countries like Denmark and severely restricted elsewhere like the UK and Estonia.
That sounds an awful lot like saying "No, you remove them entirely, or almost entirely" Since I was asking someone that said they wanted to keep plea bargains how they pictured that, I'm not sure what point you were trying to make. Can you elaborate?
The whole point is to reduce court load and create leverage when trying to convince someone to become state's witness (which is controversial as well). How does placing concrete limits on plea bargains doing away with them "entirely or almost entirely?" Estonia's and France's systems, for example, allow largely unrestricted plea bargains in the vast majority of cases, thus freeing the court for more important cases that carry large penalties while preventing prosecutors from bullying innocent people for the sake of their career.
Instead people are given the choice between say 6 months in prison or risk 15 years in prison. You end up sending innocent people to jail for long periods while obviously guilty people get vastly reduced penalties for not wasting the courts time.
PS: Alternatively, if a prosecutor offers someone a plea with X charges, they can only charge someone with those same charges.
Plus of course the lack of elected prosecutors and the existence of the independent bar (barristers) who often prosecute and defend reduces the madness of prosecutors bragging about almost perfect conviction rates. The system over here isn't perfect but I'd rather face it than any other as an innocent accused.
People should be allowed to plead guilty if they want to, but they shouldn't get any reduced punishment for it. No innocent person should ever be faced with the choice of accepting a certain lesser punishment or an uncertain greater punishment.
https://blogs.harvard.edu/philg/2013/01/15/plea-bargaining-a...
When I first walked in the door, I had a number of charges that added up to a potential first-offender maximum of 48 years. Anything that they think they may conceivably want to try to prove in court will be on your charge sheet. It is far easier to drop charges off than it is to add them in.
It isn't that you get a 'discount' for pleading, it's a strong-arm tactic to scare you into taking a deal. Taking a deal saves the state money, but more importantly (to the actors involved) it takes little time. Prosecutors can quickly rack up felony convictions (which is how they are judged) with little effort.
You get what you measure.
That's an excellent way to put it
As https://en.wikipedia.org/wiki/Plea_bargaining_in_the_United_... says, plea bargaining was considered unconstitutional until 1970. It happened, and on a large scale, but such pleas would not stand up under appeal. (Typical lawyer trick, get people to agree to something they can't legally be held to, and as long as they don't realize that it isn't binding, you get your way.)
The case https://supreme.justia.com/cases/federal/us/397/742/case.htm... established plea bargaining, but said, Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. I, and many others, would argue that giving the person a choice between years in jail if they fight versus weeks if they plea, is exactly such coercion.
The USA keeps a larger portion of its population in prison than any other country in the world. By a lot. Our plea bargain system is part of how we do that.
http://thefreethoughtproject.com/7-ways-police-break-law-thr...
While the wheels of Justice turn slowly, plea agreements are the oil that keeps the wheels turning at all. Think about it -- if you're speeding, and you know you're speeding, do you really want to take time from a Judge and a Trooper to have them present evidence to know that you're speeding? Even more so, if the trooper wrote your ticket so you don't get any points -- just a fine? Better yet...do you want someone to sit in jail if they're innocent because he can't afford his bail to sit longer because of all of the backlog?
Might say something about how much we really value that ideal.
You're right that it's nice in some ways to be able to reach plea agreements. To the extent the system can depend on them in order to get things done, though, that means there are incentives for suboptimal outcomes.
Which rapidly leads to a problem of funding and/or justice.
If the wheels are grinding innocent people down, maybe they shouldn't be turning quite so fast.
There are always unintended consequences, and constitutional guarantees are usually too blunt of an instrument to be very useful in ending most social problems. They're too easy to get around, and courts are not institutionally capable of policing all the myriad games governments can play. Legislation is far more effective as an objective matter (and that is indeed it's function in our system), yet most people seem to prefer constitutional rules instead of legislation even while intuitively understanding that legislation is not very effective at forcing social or institutional change.
I would argue that is the correct outcome. At this point, we either adjust policy/law to reduce the backlog (decriminalize drug possession, etc). Or, we commit to the path of criminalizing everything and tax and spend accordingly.
People will either pay more taxes to fund it (unlikely) or change their tolerance of what actions they want prosecuted
In the case of the latter and other serious offenses it's simple restrict sentences to what was offered in a plea bargain excepting situations in which an offer was contingent upon giving evidence against another.
Its still perfectly possible to deal with traffic and other tickets mostly without court at all and plea bargains designed to make cases in which guilt is unambiguous go quicker by agreement between defense and prosecution about a fair penalty can still be negotiated.
If there is any doubt of guilt or a fair sentence let it be adjudicated and let us bear the cost as the cost of a fair system.
If you eliminate plea bargaining without solving the real problem (the excessive leverage), the you get the worst of all worlds: choked courts, delayed justice, and long sentences.
If that bankrupts the state, that's OK with me.
Not that I don't think people who are wrongly incarcerated shouldn't be compensated but it's not so cut and dry.
Yes.
>Even if proven innocent your future prospects could be shot not to mention intangibles like lost relationships, losing pets.
These should be compensated for too. Lost relationships I think are worth a cool $1M.
If the state can't afford all this, then they shouldn't put people in jail unless they're really sure they need to.
Presumably, once exonerated, you are employable at some level, so replacing your previous income for the rest of your life is probably inappropriate. OTOH, the lost continuity has an ongoing impact that ought to be addressed somehow.
This just adds financial disincentive for pursuing highly paid individuals. (Doctors, lawyers, CEOs...) Whereas the state could afford the risk to go after lesser paid citizens.
Now the wealthy citizens wouldn't even need to lawyer up.
The whole concept of jail is just wrong and outdated. Unless someone is violent, they shouldn't be in jail at all to await trial. It costs taxpayers money and is pointless and destroys the lives of the accused, who are innocent until proven guilty at trial. If they're violent, there must be real evidence that they are, and in that case there should be no bail allowed (and if there's not enough evidence that conviction is a slam-dunk, then let them go until the trial). If there's not enough evidence because the police body-cams "weren't working", that's the police's fault.
Many get so many cases they just can't handle the load, so they have to move quickly.
There's a documentary out there somewhere that goes into detail. It's staggering, and somewhat sickening. There are "good" public defenders though. How to spot a "good" one? See how many of their cases go to trial.
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This. We place too much trust in confessions.
How something like this isn't happening long before a plea bargain or trial enters the picture is just beyond me.
Otherwise, all a lawyer has to do is say "Yes it could be cocaine, but it could also be one of these 80 other compounds that produce positive results on the field test".
Whats the solution here?
This is an embarassing failure of the justice system and all involved. Why is it so acceptable for them to do such a bad job?
In this case, it seems like a decent lawyer would be able to hear out the woman's story, and say something like "Hey, the lab will confirm the substance, so if you're really innocent, you should hold on, because a felony charge will ruin your life a lot longer than sitting in jail awaiting trial would." Instead, I'm guessing the lawyer had ten minutes to spend on this case before he had to move on to the next one, so he can't really do more than push the plea deal and move along, and there's no significant incentive for him to do more anyway. In fact, he'd probably get canned if he stopped to take appropriate time with each client, because then he wouldn't have time to even get to all of them.
This way, the police can still do their job (although a certifiable training should be required and regulated for the field tests), while having an AGILE turnaround on immediate test verification analysis - which should be done by a court laboratory technician within days of initial arrest.
> Albritton was charged with felony drug possession
WTF guys, seriously? Possession of a crumb on a floor?
It's not a drug test that's faulty here.
E.g.
> Albritton was escorted to a dark wood-paneled courtroom. A guilty plea requires the defendant to make a series of statements that serve as a confession and to waive multiple constitutional rights. The judge, Vanessa Velasquez, walked her through the recitation, Albritton recalls, but never asked why she couldn’t stop crying long enough to speak in sentences. She had managed to say the one word that mattered: “guilty.”
This is called a "plea colloquy." An example is here: http://www.vawd.uscourts.gov/media/1966/guiltypleacolloquy.p.... As you can see, it's a conversation in which the judge must assure herself that the defendant understands the charges against her, understands the consequences, and that the prosecution has facts it is prepared to prove at trial (see question 31).
At least in federal courts, these are very detailed and take quite some time. I don't know how things are done in Harris County, but an insufficient plea colloquy is grounds for having the guilty plea set aside later, so judges have strong incentives to ensure their colloquies are adequate.
So not only is it true that "guilty" is the "only word that mattered," the article's implication that the judge is only interested in hearing the word "guilty" is totally at odds with not only the judge's incentives, but the prosecutor's. What "tough on crime" prosecutor looking to rack up convictions would leave the door open for a conviction to be vacated just because the defendant couldn't get through the colloquy?
Poor defendants don't often get convictions vacated. The judge knew there was very little risk that the proceedings would go beyond the plea.
If she had a private attorney, this charge might have been dismissed.
Not for want of trying.
There are tons of prisoners who file pro se collateral attacks on their convictions and pleas from prison. So many so that at the court where I worked, there was an entire group of staff attorneys dedicated to reviewing such applications. A plea colloquy like the one described in the article would've stuck out like a sore thumb.
I am sure that all of the filed paperwork for the plea colloquy looks proper. There was the formulaic set of things to be asked and said, and all were asked and said. The defendant knew what she had to say to avoid years in jail, and said them. On an appeal, it would all be in order, and there would be little chance of the judge being embarrassed by the result.
As for the prosecutor, so few plea bargains are ever appealed that it is in their interest to plough people through the system as efficiently as they can. If efficiency gets you 10 more convictions, one of which gets overturned, you've got 9 more under your belt than you would otherwise. And less than 10% of these convictions ever get appealed, let alone won on appeal.
Everyone here is acting in accord with their incentives. The police made an arrest based on an honest belief from chemical evidence. The prosecutor made a conviction. The judge filed all the right paperwork. The defendant got out of jail in weeks rather than the threatened years. This is all business as usual.
The result was absolutely and entirely unjust. That is ALSO business as usual.
Our justice system gets a lot of things wrong. I'm pretty sure I've called the federal sentencing guidelines "quackery." I don't think plea bargaining is one of the things it gets wrong.
At one point, it was part of my job to read plea colloquies, in a city that saw a lot of drug prosecutions. They looked nothing like what the article is describing. I'm skeptical of the article on the basis of observation and experience, not faith.[1]
> I am sure that all of the filed paperwork for the plea colloquy looks proper. There was the formulaic set of things to be asked and said, and all were asked and said.
What goes on file is the transcript of the oral hearing. If, as the article asserts, the defendant was too much in tears to say anything intelligible besides "guilty" the transcript would reflect that and you would not have a proper colloquy.
[1] Relevant: https://news.ycombinator.com/item?id=5203871 ("Briefly stated, the Gell-Mann Amnesia effect is as follows. You open the newspaper to an article on some subject you know well. In Murray’s case, physics. In mine, show business. You read the article and see the journalist has absolutely no understanding of either the facts or the issues. Often, the article is so wrong it actually presents the story backward—reversing cause and effect. I call these the “wet streets cause rain” stories. Paper’s full of them. In any case, you read with exasperation or amusement the multiple errors in a story, and then turn the page to national or international affairs, and read as if the rest of the newspaper was somehow more accurate about Palestine than the baloney you just read. You turn the page, and forget what you know.")
When we provide that strong of an incentive against trying for justice, we have to expect unjust results. They won't look unjust from what the judge sees in the court room. They will be unjust because the person plea bargaining has been bullied into admitting to a lie.
This is a fundamental problem that happens before you walk into the court room. Nothing you see in court will indicate how big the problem is. To get a handle on it you need to do an independent review of a randomly chosen fraction of plea bargains to see how different the results are from what a just result would be.
I would be willing to bet a large sum that in a significant percentage of cases (ie over 10%), the result is unjust.
Your 10% figure seems bogus to me. Almost all plea bargained cases are clear-cut. Security footage of the defendant walking out of the store with the TV. Cops called to a house as a husband is beating his wife. Stash of drugs found under the front seat at a traffic stop. That is the bread and butter of the justice system, not cases where facts or intent can be seriously disputed.
This could not be less true in today's America. I encourage everyone here to read The New Jim Crow (and books like it). Then you'll see how deep the mass incarceration problem is.
>In its curriculum, the technology center states that field tests help authorities by “removing the need for extensive laboratory analysis,” because “the field test may factor into obtaining an immediate plea agreement.”
33% positive rate, $5 a pop. After six tests (stop'n'frisk'n'test), you've got 90% chance of convictable evidence on any given party.
Someone tests free, test 'em again for another $5.
$30 (six rounds of tests) buys you a 90% chance of convictable evidence.
That's a pretty sweet deal, no?