A civil rights fiasco

Three years ago, Dasha Fincher was arrested in Monroe County, Ga., after deputies performed an on-the-spot test of a bag of blue substance that they found in the car in which she was a passenger. The stuff tested positive for methamphetamine. After her arrest, the judge in her case set bail at $1 million because she was perceived as a drug trafficker.

There was just one problem: The roadside test was wrong. The blue substance was actually cotton candy. Fincher spent three months in jail because of the faulty test.

Fincher’s story isn’t an aberration. The prevalence of false-positive results associated with roadside drug tests is common. ProPublica warned that “a minimum of 100,000 people nationwide plead guilty to drug charges that rely on field-test results as evidence” and that because the tests are so frequently used, this could mean thousands of wrongful convictions.

Prosecutors nevertheless continue to seek unaffordable bail and charge defendants with serious crimes on the basis of unreliable roadside test results. It doesn’t have to be this way.

For instance, the unmatched power of their office allows prosecutors to end pretrial detention in cases involving roadside tests. Prosecutors who rely on these tests must not set cash bail. Furthermore, they must ensure that lab confirmations are prompt.

This can be accomplished through robust supervision and screening practices, but even in offices that have these practices, more must be done to prevent the incarceration of innocent people. As such, prosecutors and local municipalities should create or expand conviction integrity units to evaluate prior cases in which these tests were used as evidence in one’s conviction. Prosecutors do this already—around the country, offices review convictions in which misconduct, bad evidence or error led to the wrongful incarceration of innocent people.

Prosecutors also must refrain from pursuing plea deals in cases in which arrest is exclusively supported by a roadside test. This would ensure that individuals who are subjected to wrongful arrest are at least free from the pressure of deciding whether to plead guilty for something they didn’t do—just because the lab hasn’t figured out that they’re innocent yet.

Even if prosecutors don’t think that decriminalization, or even outright legalization, is the solution, they should put into place protections to ensure no one’s liberty is jeopardized.