TDCJ audit of Dallas probation began this week

Updating a recent post: The Dallas Morning News reported over the weekend that, on "Monday, the Texas Department of Criminal Justice will begin an examination of the probation department’s policies and sample some of its 50,000 cases. Auditors will propose fixes if they find paperwork holes that could leave criminals free rather than behind bars for violating probation." CorrectionsOne posted the full article.

Just to say it, and surely TDCJ's auditors must know this, but not every probation violation merits ending up "behind bars" and it's disingenuous to tell the press otherwise. That's also the problem with the judges' complaints as publicly quoted. There may have been one felony DWI that was egregiously mishandled, at least in part due to large caseloads and understaffing. But that doesn't mean POs should file revocation papers every time they get a dirty UA on probationers of any stripe. You could fill up the jails and the prisons pretty quickly that way with little public safety bang for the buck.

Humorously (to me, anyway), in a moment of self-reflection, a lengthy DMN editorial published yesterday framed the issue in terms of media criticism:

Tempting though it may be, don’t think you know everything there is to know about our local criminal justice system from what you see on TV or read in Dallas Morning News crime stories.

Oh, you get a lot, no question. This newspaper, especially, does an exceptional job of informing you about the whats and whys of high-profile slayings, high-dollar frauds and other crimes of urgent community interest, like serial rapes.

Yet these crimes, however newsworthy, are only the very tiptop of the crime iceberg in North Texas. Beneath the surface is the bulk of all other offenses, many of which are certainly against the law but not serious enough to keep the perpetrator in jail very long. Simply, the system would collapse under its own weight if we tried to keep every miscreant locked up, key thrown away, no matter how deserving the lawbreaker might seem.

Which leads us to the probation system. In Dallas County, it falls under the Community Supervision and Corrections Department. On a given day, its 450 probation officers are responsible for 53,000 to 55,000 people under obligation to the state but free on the streets. Simple math tells you that each officer, on average, has far more than 100 active files.

Some probationers are otherwise law-abiding folks who made a mistake; they are far less trouble to supervise. Others are varying degrees of addicts or criminal hard cases, who, by design or happenstance, make everyone’s lives more difficult, in jail or out.

Expending a greater percentage of resources on the latter group is among the many transitional changes underway at the probation department. Recent news accounts exposed significant anecdotal problems in the management of some probationers, especially those with drug or alcohol problems. Felony court judges, led by state District Judge Tracy Holmes, were alarmed and said so.

Michael Noyes, who heads the county probation department, does not disagree. In fact, he says he welcomes an ongoing state audit of his department, hoping it will point to areas of systemic improvement achieved or needed. One reason he has been remarkably nondefensive is because he started implementing changes long before bad news hit the newspaper.

Many of the problems, he notes, are not new. One employee was fired, others were reprimanded. Some issues demand heightened training, which has begun. Other problems will benefit from smarter allocation of resources.

Good to see that Noyes appears so sanguine. We'll see what the audit says. Grits hopes they suggest progressive-sanctions approaches Dallas CSCD and the judges could take as opposed to automatic arrest or revocation.

Dallas probation department to audit drug and alcohol tests after positive UAs went unreported

The Dallas County probation department is under fire for failing to inform a district judge of failed drug and alcohol tests of its probationers, the Dallas News reported last week (Aug. 14). The story opened:

Dallas County judges have ordered an extensive review of felony cases after discovering that probation officers failed to report probationers violating repeated drug and alcohol tests. 

The audit is designed to tell the extent of the breakdown and whether potentially dangerous criminals have remained free instead of facing probation revocation.

“This is a failure of supervision in the field. It’s extremely dangerous for Dallas County,” said state District Judge Tracy Holmes.

Holmes’ concerns already have triggered an overhaul and staffing changes in the county probation department.

The decision to have an outside agency examine current probation files also signals courthouse efforts to move quickly to uncover cases that could pose a risk to the public.

The probation department chief acknowledged the errors.

“Regardless of the number, the quality of the supervision was indeed unacceptable,” said its director, Michael Noyes.

Holmes began questioning probation practices after finding 34 cases in which the department didn’t tell her probationers had been repeatedly drinking or using drugs in violation of their sentences.

She was most outraged to learn about the case of a drunken driver who, over 18 months, saw at least eight probation officers. He tested positive for alcohol more than 30 times, but she was never told.

Dallas probation director Michael Noyes fell on his sword and has begun the obligatory reshuffling of employees and duties that such incidents inevitably engender:

With 450 probation officers and supervisors in charge of 50,000 probationers, the caseload is high. But Noyes said that doesn’t excuse the “system failures.”

The probation department already has shuffled its staffing, including reprimands, a firing, more training and more personnel.

In general, high caseloads do seem to be the main culprit. Though the felony DWI probationer in question had eight probation officers over 18 months, "testimony showed that none appeared to have read his complete file before meeting with him." That's directly related to excessive caseloads, even if it's not politically correct at the moment for Noyes to say so.

With the department having admitted fault, DMN columnist Jacquielyn Floyd took the easy shot, opining, "If probationers realize they can ignore the rules without getting hauled back to court, then probation is no longer the closely monitored second chance it’s supposed to be – it’s a free pass. If that’s the case, then what’s it for?"

Though we'll learn more from the audit, from what's been reported IMO that's the wrong lesson from the episode. Grits responded to Floyd in the comments: "A big part of the problem is [that probation departments] give drug and alcohol tests to too many people and the volume swamps them. Felony DWI cases, sure. But requiring it for every single case overwhelms the system. Do less drug testing and it's easier to focus on violations in cases where it's used. Do it for everybody and there simply aren't enough resources to effectively monitor or sanction every violator." That's especially true when the department is understaffed.

That's similar to what IMO was the main issue last year when the Harris County probation director was forced to resign over drug-test results falsely attributed to the wrong probationers, a fiasco that ended up getting some innocent people's probation revoked. There, the department's sweeping use of drug and alcohol testing on non-high risk probationers overwhelmed the under-resourced system. It won't surprise me if an audit shows the same dynamic underlying the mess in Dallas.

The News reported that Dallas County judges have discussed "creating a standard for all 17 felony courts about when probationers should be sent to court for violations." They would also do well to standardize and limit the type of probationers for whom they order drug and alcohol testing in the first place, and to identify probationers eligible for early release. Otherwise, the most likely solution will simply be "spend more money," a suggestion for which there is no obvious or ready revenue source.

Will UA testing changes at Harris County probation fix problems or create new ones?

The Houston Chronicle has an update on efforts by the new Harris County probation director, Helen Harberts, to revamp the adult probation department's drug testing regimen, setting an aggressive target of Nov. 1st for implementing the changes ("Interim director for probation department wants fast turnaround," Oct. 5"):

The problems, which Harberts called "horrifying," were immediately evident to her when she took the helm Sept. 21 with a six-month contract.

"I have structural problems, training problems, almost every type of problem lumped in here," Harberts said. "I have to fix facilities and structures, methodology, and we need to broaden the scope of our testing; it was not sufficient."

The biggest change, Harberts said, is the testing of urine for the presence of alcohol. In the past, probation officers just used breath-testing machines.

The probation officers, she said, knew that suspects awaiting trial on bail, as well as probationers, were getting away with drinking.

Curiously glossed over in the story were the main reasons the department got in trouble over their urinalysis program: Faulty recordkeeping that allowed samples to be easily misidentified and excessive volume of urinalysis testing ordered by judges that overwhelmed staffers overseeing the program - a situation judges had been warned about for years. Instead, the record keeping issues weren't mentioned while Harberts counter-intuitively aims to expand the scope of urinalysis to test for more stuff, using lower thresholds for "positive" determinations.

Besides retraining all of the technicians and probation officers, Harberts is making threshold levels in drug tests more stringent.

Because drug tests are more sophisticated than "positive or negative," probation departments have to specify a number in the range where the amount of a substance is considered a "positive" test. Harberts said the new levels line up with the scientifically accepted standards, like those used in federal drug testing.

For example, she said, the number of people who have occasionally smoked marijuana without getting in trouble in the past will probably start testing positive for the drug.

Harberts said she wants to help people who are losing their grip on sobriety from falling back into their old habits.

"This is not about 'gotcha,' " she said. "This is about helping people resist cravings and work their programs."

Notably, when Bexar County lowered thresholds for positive tests (in 2008 they switched from in-house testing to a private provider that used lower thresholds), they began to pretty regularly generate "startlingly high numbers of positive drug results." At one point, just a quarter to a third of positive UA results in Bexar were upheld by confirmation testing after the lower thresholds were put into effect. In Bexar, the problem from lower thresholds was aggravated because the department did not want to pay for more expensive confirmation testing, which led to people being jailed based on false positives.

I'd like to know: Are the new, lower thresholds similar to those Bexar implemented (and later abandoned)? Reporter Greg Harman at the San Antonio Current compiled a list in 2008 of common triggers for false positives at the lower thresholds:

So-called “false positives” can come from a variety of factors. Here is just a sample.

Marijuana? Other candidates may be Dronabinol, Advil, Motrin, Midol, Excedrin, Aleve, Phenergan, niacin, hempseed oil, or a kidney infection. Being dark-complected can also put you at higher risk of a positive test, as the body flushes excess skin pigmentation, or melanin (which resembles stoner construct THC), from the system.

Amphetamines? Check those cold meds: ephedrine, pseudoephedrine, propylephedrine, basically the whole damn cold cabinet … Robitussin Cold and Flu, NyQuil, Vicks NyQuil, nasal sprays such as Afrin, asthma meds like Primatine tablets, and a range of prescription drugs.

Opiates? Not just poppyseed muffins; Tylenol with codeine, most prescription pain meds, cough suppressants with dexotromethorphan (DXM), NyQuil, or kidney or liver disease.

Cocaine? Popular antibiotic amoxicillin, tonic water, diabetes, and kidney and liver disease.

LSD? Watch out for migraine medications, including Egotamine, Ergostat, Cafergot, Wigraine, and Imitrex, among others.

In addition to these new questions, nothing in this article addresses the old ones. The problems that led to the DA refusing to use probation department test results didn't arise because probationers cheated on tests or employees weren't trained well, but because departmental systems weren't robust enough to handle the volume of UA tests the department conducted without mixing up which sample belonged to which probationer. One hopes that's being addressed but you wouldn't know it from this coverage. Ms. Harberts seems in this story (which opens with a titillating demonstration of phony penises used to cheat on drug tests) to want to shift the conversation from departmental practices to non-compliant probationers. I understand why she and the judges would prefer to do that, but I also wonder if the bigger problems facing the agency and potential headaches from reducing UA positive thresholds are being downplayed internally the way they were in this article.

Probation departments serve too 'many masters,' but Harris judges mainly responsible for UA mess

In the wake of a scandal over false positives in urinalysis tests that rocked the Harris County adult probation department, spurring the resignation of its director and other top administrators, the Houston Chronicle published a story yesterday titled, "Probation department a no-man's land when it comes to oversight," which included this quote from your correspondent:

Scott Henson, a criminal justice activist and blogger who works with the Innocence Project of Texas, said the oversight structure for probation departments statewide is "incredibly weak."

"The judges are supposed to provide oversight, TDCJ is supposed to provide oversight, but, in practice, none of it is very effective or consistent, and the probation directors are sort of left out there on their own," Henson said. "Everybody knows who runs the jail, everybody knows who runs the prison system. When you ask about the probation department, they serve many masters and, simultaneously, none."

That quote accurately reflected my comment, but failed to include another layer to the issue I tried to convey in my conversation with the reporter: The extent to which individual judges - not just in their role as the board of directors of the probation department but in their decisions in cases that come before them - bear the bulk of responsibility for the mess in which Harris County finds itself.

The Chronicle reported that "The judges last week released a statement saying state law limits their role to establishing the department, approving its budget and appointing a director and fiscal officer. Those limits are to shield the judges from lawsuits." But that doesn't relieve them of responsibility.

Judge Michael McSpadden had earlier told a local TV station that "When you're overwhelmed, what you do is go to the judges is [sic] say don't make the requirements in every single case, we are overwhelmed. We never heard that." But as I'd described previously on this blog, in 2005 a consultant's evaluation (reported here on Grits) told judges that requiring urinalysis in so many cases was consuming too much staff time and causing delays throughout the system. The consultant, Justice Management Institute, specifically recommended that "The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered," but that never happened. In other words, judges knew the department was overloaded by too many drug testing orders but willfully ignored the problem.

So while I agree that, in general, oversight of probation departments is fragmented and incoherent, that doesn't absolve Harris County judges from responsibility for this debacle. The county paid good money for consultants to tell them that overuse of urinalysis in the name of being tuff on crime was overwhelming the system, and they just kept doing it. As a consequence, the county has had to stop relying on the probation department's drug test results entirely until the issues can be resolved - a situation made more difficult by the untenable leadership vacuum at the top of the agency.

It's true the probation department serves too "many masters." But in the end, it's judges who bear most of the responsibility for letting tuff-on-crime politics subsume their good judgment when it comes to the volume of UAs swamping the department's ability to effectively oversee them.

Harris probation director resigns in wake of urinalysis errors that put innocents in jail

An outrageous scandal has engulfed the Harris County probation department and forced the ouster of its director.

Harris County probation director Paul Becker tendered his resignation, reported the Houston Chronicle ("Harris County's probation director resigns," August 29) in the wake of a hearing which concluded with State District Judge Denise Collins issuing a moratorium on using urinalysis results from the probation department in her court and calling for Becker and his three deputies to resign.

Moreover, "On Tuesday, the Harris County District Attorney's Office joined the judge in refusing to use any of the division's drug test results in the 36 other criminal courts until further notice because they have questions about the reliability." (Regular readers may recall that the Bexar County DA had to do the same thing back in 2009 when similar allegations arose there.)

KPRC-TV (Aug. 28) summed up the core allegation thusly: "The fallout comes after days of testimony showing a long list of problems, errors and mix-ups in the way the county's probation department tests probationers for illegal drugs. In some cases, positive drug tests were linked to the wrong people. Local 2 Investigates reported last week that at least one probationer went to jail in part because of an erroneous drug test result."

Further, "Probation department leaders admitted they never told prosecutors or even judges about the problems, even when they knew probationers with erroneous tests went to jail."

Judges now say they would have stopped requiring urinalysis in every case if they'd been told the probation department was overhelmed, reported KTRK-TV, though hindsight is always 20/20:

Judge Michael McSpadden says he wishes the Probation Department had told judges they were overwhelmed with the testing

"When you're overwhelmed, what you do is go to the judges is say don't make the requirements in every single case, we are overwhelmed. We never heard that," Judge McSpadden said.

Even with Tuesday's moratorium, the biggest problem for Judge Collins is that there is no way to tell how many probationers were wrongly sent to jail.

"And I don't think we have any idea, and we never will, how many people have been impacted by this. There's no way to measure it," said Judge Collins.

In truth, Grits doubts most Harris County judges would have stopped requiring urinalysis in every case without this kind of scandal to force their hand. Back in 2005, Grits reported based on a consultant's evaluation that Harris County had been told that "Urinalysis requirements in particular, while popular among prosecutors and judges, take up a huge amount of staff time and cause delays throughout the system." The consultant, Justice Management Institute, specifically recommended that "The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered," but that never happened. So judges knew the department was overloaded by too many drug testing orders but willfully ignored the problem. That's not Mr. Becker's fault.

In some ways I feel sorry for Becker, who was in a damned if you do, damned if you don't situation. Probation departments are underfunded, relying mainly on probationer fees and a relatively small stipend from the state. Plus, in Harris they've been asked to provide urinalysis and supervision not just for people on probation but often for defendants out on bail pretrial. The system has grown so large and unwieldy that, to me, these types of errors are regrettable but unsurprising, not that that does wrongly jailed defendants any good. Mr. Becker may have fallen on his sword, but by no means are he and his staff the only ones to blame.

This episode also reminds us that people who've spent decades in prison on false rape or murder convictions before being freed by DNA aren't the only or even the most common category of innocent defendants jailed based on false accusations. These more workaday, low-level cases have just as much room for mistakes, but are also much more easily swept under the rug. Most defendants are indigent and can't afford to mount the type of full-court press that resulted in Judge Collins' findings this week. It's a great mitzvah that attorney Lisa Andrews did so on behalf of her client, but if defense attorneys in Harris County had been aggressively confronting false forensic evidence against their clients on an ongoing basis, maybe the problems would have been identified and rectified long ago.

RELATED: "Houston probationers did jail time based on faulty drug tests." SEE ALSO: Coverage from the ABA Journal, and a blog post from Paul Kennedy at The Defense Rests titled "Judge calls for heads in drug test fiasco." A Houston radio station quoted an attorney predicting civil litigation from wrongly incarcerated defendants.

AND MORE: The Houston Chronicle's Lisa Falkenberg has an interview with attorney Lisa Andrews.

Houston probationers did jail time based on faulty drug test results

Usually when this blog discusses actual innocence cases, we're talking about people wrongfully convicted of extremely serious crimes like rape or murder, typically where DNA evidence provides sufficient proof to overturn a jury verdict. Seldom, though, will the state acknowledge that innocent people are falsely accused on more petty, mundane matters, sometimes based on faulty forensic science or even a mere clerical error.

That's what's happened in Houston where the probation department has sometimes jailed probationers based on faulty or misrecorded results from urinalysis tests. Reported KTRK's Ted Oberg:

On Thursday, the head of the Harris County Probation Department told us he didn't know of anyone sent to jail over a bad drug test. On Friday, one of his own probationers came to court to prove him wrong.

The very problem the Harris Co. Probation Dept. would rather hide and deny walked right into court and swore to tell the truth.

"I wish I could have said more to that probation officer," said Richard Youst.

Youst was on probation for DWI when a judge put him in jail for 10 days after a supposed positive drug test for cocaine. It was a bad test result, but before attorneys figured it out, Youst lost his driver's license, his apartment and his job.

"Our practice is to act on it as soon as we know that there is an error," said Ray Garcia with Harris Co. Community Supervision.

Probation officers have known for a month, but never owned up to it.

"Nobody has contacted me from that probation office," said Youst.

A freelance Houston airline executive had the same problem. He didn't want to be identified, but he spent 16 hours in jail after a false test for marijuana. He lost two days of work including a huge presentation and lost his chance at a promotion.

"They knew about what had happened to other people and they did not fix it," said defense attorney Lisa Andrews.

Every drug test at the Harris Co. Probation Dept. gets an ID number. They're supposed to be scanned electronically, but according to testimony they often have to be entered into the computer by hand. There's no other ID that goes with it. So if the data entry is even one digit off, an innocent probationer gets hit with someone else's positive drug test result.

"They need to get their stuff straight," said Youst.

From inside the department Friday, Donald Martin, a 22-year probation employee, told Judge Denise Collins she may not be able to trust any Harris County drug test results. Martin testified, "The chain of custody has so many holes, I don't know if you can say any of the positives are truly positive." 

See additional coverage from Oberg and the Houston Chronicle. According to the Chronicle:

A supervisor who testified Friday said finding 3-month-old urine samples in the back of the division's unlocked refrigerators was not uncommon.

The old samples would simply be sent out as though it had been collected that day, said Donald Martin, a supervisor at the department.

As part of the court-mandated "chain of custody" that ensures the integrity of evidence, law enforcement has to show that an appropriate custodian has kept evidence from being tampered with before it can be admitted in court.

"When it comes to chain of custody," Martin testified, "there are more holes than Swiss cheese."

Doesn't inspire confidence, does it?

TDCJ finds spare money during budget crunch for drug testing employees

My only question about this latest move by TDCJ: "What will you cut in the budget to pay for drug testing employees?" Mike Ward reports in the Statesman today that:

In a push to bolster security and curb contraband in Texas' massive prison system, officials for the first time plan to order random drug tests for a majority of the state's 41,000 corrections employees including all guards and parole officers.

Bryan Collier, deputy director of the Texas Department of Criminal Justice, said Thursday that the policy to be unveiled next week is designed to raise staffing standards inside Texas' 112 state prisons. ...

The drug testing "will cover a majority of the agency's employees," Collier said. "Any of us who are in this business, if people are doing drugs, we don't want them working in the institutions. It's not safe."

The agency has more than 41,300 employees, including more than 29,200 correctional officers and supervisors and nearly 1,300 parole officers.

UPDATE: Sen. John Whitmire sent around an email expressing his support for the new policy, and I replied with the question above about where to cut the budget to pay for it. Whitmire responded that "I am not for cutting TDCJ's budget and am confident funding will be found to cover the additional expense." The good senator remains much more sanguine than I am that it's possible to avoid cutting prisons. TDCJ was taken off the list of exempted agencies in the most recent round of budget cut requests from state leaders.

Clean urinalysis results allegedly exchanged for bribes in Houston

I wrote last week that Texas has enough ongoing corruption cases to support a single-issue Texas Bribery Blog, and two recent examples provide a case in point. Somehow I missed the story about a "urine monitor" at the Harris County probation department who was "charged with bribery in May for allegedly taking $200 to submit a fake drug test form." As it turns out, though, it wasn't just a one-time deal. Investigators this week announced that an undercover sting caught another county employee allegedly doing the same thing in the pretrial services division, reports the Houston Chronicle ("Harris County urine monitor charged with bribery," July 2):

Prosecutors Thursday said they are seeking more possible victims after arresting a Harris County employee accused of taking bribes to provide clean urine to defendants out on bail.

Jorge Alfonso Campble, 45, was arrested Wednesday on charges of bribery and tampering with evidence after investigators set up a sting with marked money, video recording equipment and a 23-year-old defendant on bail for possession of marijuana, Assistant District Attorney Jennifer Devine said.

He is the second county urine monitor to face bribery charges in connection with court-required urinalysis in two months. ...

In May, a urine monitor who worked for Harris County’s Community Supervision and Corrections Department for less than two months was charged with bribery after being accused of taking $200 to turn in a fraudulent drug test form.

The case against Thomas Edward Walker, 22, who was accused of falsifying a report instead of ensuring that the person’s urinalysis was performed correctly, are pending.

I've never been a big fan of urinalysis and other probation-style bail conditions, anyway, considering them a needless source of expense that promotes jail overcrowding without much resultant benefit in public safety. That's even more the case if the system is so riddled with corruption that positive urine tests are overlooked in exchange for bribes like they were Mexican traffic tickets. Then you have to begin to wonder, what's the point?

Two of these cases cropping up in different Harris County departments makes the matter even more worrisome; it means the problem apparently isn't localized, certainly not in just one department and perhaps not just in Houston. These functions are performed in a twilight land that typically receives little public scrutiny and it wouldn't surprise me to discover the same problem happening in other jurisdictions if anybody bothered to look.

False positives plague drug tests by Bexar probation

Not every actual innocence case involves murders, rapes, or other heinous crimes. In San Antonio, between 2/3 and 3/4 of positive urine tests from the Bexar probation department resulted in false accusations of drug use, Greg Harman at the SA Current reports ("Urine trouble," Feb. 12). Even so, but the department still doesn't offer routine confirmation when probationers test positive:

Almost immediately after closing their in-house drug lab, Bexar Probation began receiving startlingly high numbers of positive drug results from its chosen cup sniffer, Treatment Associates. Suspicions were raised.

Since the original contract between the County and TA provided for free confirmation testing via the industry’s leading technology — gas chromatography-mass spectrometry, or simply GC-MS — some of those early positives were apparently shipped for confirmation.

Of 26 “positive” drug tests performed by TA that were shipped off for confirmation by GC-MS operator Norchem Drug Testing during the first four months of TA’s contract, only eight came back actually tainted by opiates, cocaine, or methamphetamine, according to newly released documents.

Some of these confirmation requests contained several classes of drugs. In one case, a probationer was accused of having opiates, methamphetamine, and THC in their system at the same time. After running the same pee through GC-MS, all three triple-strikes were cleared by GC-MS. This happened three times in a row to the same probationer.

Considered by drug class, the cases secured by San Antonio Attorney David Van Os as part of the discovery period of one of his lawsuits naming Bexar Probation and Chief Probation Officer Fitzgerald represent a total of 39 alleged positive claims of drug use. When checked against GC-MS, however, only 10 of those cases — one in four — came back positive.

An amended contact between the County and TA in July of last year added a $25 fee for GC-MS confirmation, but according to current and former case managers, these confirmation tests were rarely used by the department after privatization, and were quickly done away with altogether.

I'd be willing to bet these data partially explain why Bexar County's probation revocation numbers are so high compared to the rest of the state - they're routinely relying on false accusations of drug use by probationers without doublechecking to make sure the results are accurate. Judges in Bexar know full well about this situation so one can only assume they support probation director Bill Fitzgerald's decision to revoke probationers based on faulty drug tests.

Bexar apparently is refusing to perform routine confirmations because it doesn't want to pay the $25 per test to do the job right, but that's probably a penny-wise, pound foolish decision. Austin attorney and former Democratic Attorney General candidate David Van Os has sued the agency to correct the policy, and if he prevails it will be a lot more costly for the agency than if they'd just done the job right in the first place.

Unconfirmed UAs aren't accurate but used anyway

After all the allegations that the Bexar County probation department made supervision decisions based on faulty, unconfirmed urinalysis tests, I was interested to see a USA Today story ("False results put drug tests under the microscope," Nov. 3) reported by scribe Mimi Hall describing the same problem with a national scope, the:

use of unreliable field drug-test kits as the basis to arrest innocent people on illegal drug charges.

The inexpensive test kits are used by virtually every police department in the country and by federal agents, including Customs officers at the nation's borders. The kits test suspicious materials, and a positive result generally leads to an arrest and court date, pending more sophisticated tests done after the sample is sent to a lab.

The kits use powerful acids that react with the substance in a plastic pouch. If the liquid turns a certain color, it is a considered a positive result. But a number of legal products and plants test positive: chocolate for hashish; rosemary for marijuana; and natural soaps for the "date-rape drug" GHB.

"The tests have no validity," says former FBI narcotics investigator Frederick Whitehurst. And as more organic products come on the market, "the potential for civil rights violations when these presumptive tests are out there is phenomenal." ...

Government officials say there are no records on the number of people who have been wrongly arrested because of the tests. Garrison Courtney of the Drug Enforcement Agency says the test kits are "not perfect but they give you a pretty good idea" whether a suspicious substance is an illegal drug.

Allen Miller of Forensic Source, which makes kits, says they find "families of chemical compounds" and are not meant to be definitive. Any arrest should be the result of good investigative police work, Miller says.

At a minimum, confirmation tests (or admission of use by the testee) should be mandatory before taking either judicial or administrative action, and people should only be required to pay for the confirmation test if it comes back positive - if it exonerates them, the probationer (or whoever's being tested) shouldn't have to pay.

Sloppy forensic science isn't just a problem in high profile rape and murder cases, which is the impression you might get looking only at the long string of Texas-based DNA exonerations - it's just as big a source of false accusations (if not much more common) in penny ante cases where the stakes may not be high enough to justify the risk and expense of fighting them.

CORRECTION: To my chagrin, a commenter corrects me to point out the USA Today article "is talking about field testing on the actual substances found... not urinalysis drug tests." Looking at the story again, that's totally right and I apologize for the error. That said, the principle is the same. When we know cheaper forensics have a higher error rate, access to confirmation tests shouldn't be optional or based on budget concerns.

Willful Negligence: Bexar probation still not providing confirmation to identify false-positive drug tests

Bexar County probation director Bill Fitzgerald continues to defiantly refuse to allow confirmation tests for probationers' urinalysis screenings, reports the San Antonio Current, which observes that, "By any measure, the department today is a house on fire and the only ones who can intervene, Bexar County’s local judges, have chosen to remain silent." After the agency earlier this year switched to a private treatment provider with laxer testing standards:

One 20-year employee, who asked not to be identified for fear of retaliation, said she’d never seen such an explosion of obviously bad data — or such a poor administrative response to a critical situation. “I’ve never worked for an administration that didn’t care [if] false positives were occurring,” she said. “And then, to cover it up … as if they weren’t occurring.”

Fitzgerald's policy change to privatize drug testing services and disallow confirmation tests has already led the department to accuse demonstrably innocent people of drug use while on probation, the Current reports. By contrast, confirmation is routinely offered by probation departments in other large Texas counties.

Skirmishes over the contract with Treatment Associates have also drawn renewed attention to the department’s drug-testing policies in general. Shutting down the department’s old drug lab isn’t the only change five-year veteran Fitzgerald has made during his tenure. He also ended the department’s practice of seeking confirmation tests for any dubious or disputed test results.

While former adult-probation director Caesar Garcia agreed that the department’s in-house drug-testing operations had received some black marks in the past, he said confirmation tests were performed when probation officers requested them. It’s an assertion backed by several officers interviewed for this article but strenuously denied by two-year employee Cline, who did not work with Garcia during his 25-year reign as director.

The probation department relies on “dip” tests for proof of drug use. Dip tests consist essentially of dropping a sensitized paper into the pee cup and waiting for the appearance of positive lines, not unlike many home-pregnancy tests. ...

Austin defense attorney and UT Criminal Defense Clinic lecturer Richard Segura said the dip-test technology doesn’t fly in court.

“Normally, if the client doesn’t admit to it, there’s no way in hell they’re going to ever be able to prove that case up,” he said. “The probation officer’s not a chemist, and the test isn’t scientifically validated. It’s not even admissible.”

Most officers use the tests to confront their clients and angle for a confession. Many defense attorneys even take the findings at face value and try to work plea deals based on their results. Certainly, they are accurate the majority of the time. But they fail enough that any time a result leads officers to seek to revoke a client’s probation, all other major cities in the state surveyed for this story offer confirmation tests. Probationers in Bexar County, however, aren’t even told they have the right to take a more conclusive test.

“No,” one Bexar County officer told the Current. “That information is not being offered.”

Though it's not the kind of thing the state's various law-school based innocence clinics work on, this is as much an innocence issue as the guys getting out of prison after decades based on DNA evidence, though typically the wrongful punishment isn't nearly as severe. If you're accused by a false positive and the department knows that routinely happens but refuses to order confirmation before taking action based on a dip test, to me that's willful negligence - particularly given that they fired the whistleblower who complained.

Current writer Greg Harman posted an audio file of his interview with Kathleen Cline from the Bexar probation department, so you can hear the full thing if you'd like. At the tail end, I was flattered to hear Cline advise Harman to "get on Grits for Breakfast and do a little research"; nice to know Grits is where primary sources send reporters for their information! ;)

Finally, Harman compiled an interesting sidebar listing things that can cause a false positive in unconfirmed "dip test" urinalyses:

So-called “false positives” can come from a variety of factors. Here is just a sample.

Marijuana? Other candidates may be Dronabinol, Advil, Motrin, Midol, Excedrin, Aleve, Phenergan, niacin, hempseed oil, or a kidney infection. Being dark-complected can also put you at higher risk of a positive test, as the body flushes excess skin pigmentation, or melanin (which resembles stoner construct THC), from the system.

Amphetamines? Check those cold meds: ephedrine, pseudoephedrine, propylephedrine, basically the whole damn cold cabinet … Robitussin Cold and Flu, NyQuil, Vicks NyQuil, nasal sprays such as Afrin, asthma meds like Primatine tablets, and a range of prescription drugs.

Opiates? Not just poppyseed muffins; Tylenol with codeine, most prescription pain meds, cough suppressants with dexotromethorphan (DXM), NyQuil, or kidney or liver disease.

Cocaine? Popular antibiotic amoxicillin, tonic water, diabetes, and kidney and liver disease.

LSD? Watch out for migraine medications, including Egotamine, Ergostat, Cafergot, Wigraine, and Imitrex, among others.

Bexar probation chief stands by UA methodology that accused innocent people

There's a certain surreal nature to today's effective WOAI-TV story on use of flawed urinalysis tests at the Bexar County adult probation department.

Bexar Probation Director Bill Fitzgerald says his department does not do confirmation analysis when a preliminary drug screen comes up positive because it would be too expensive, but confirmations are free under their contract. The head of the urinalysis lab and Fitzgerald both say they stand by methodology that falsely accused probationers of drug use this spring, but they're changing it in response to criticisms. Meanwhile, the whistleblower who first raised these problems filed a federal lawsuit last Thursday, adding to the bizarre circumstances surrounding the story. Reported WOAI's Brian Collister:

“I don't believe in locking people up for dirty urines," said Bill Fitzgerald, the Chief Probation Officer during an interview in his office with the Trouble Shooters.

He says that he expected a spike in positive test results.

That's because back in February they stopped doing the drug tests themselves and hired a company that does drug testing called Treatment Associates.

They use a small, thin, rectangular-shaped, one-time-use device that is dipped in the urine.

It's called a rapid test.

The manufacturer says it's used as a preliminary test.

If a single line appears in one of the boxes on the face of the device, you are positive for that class of drug, but not necessarily an illegal drug.

"There's one issue there on my part that the test is more sensitive. So I anticipated we would end up with more people showing up positive for urinalysis. This test is more sensitive than the ones we used previously," said Fitzgerald.

In fact, it’s sensitive enough that many prescription, and even some over-the counter, drugs will test positive.

Something as common as cold medicine could land a person back in jail.

And knowing all that, the county is still using this single test to determine someone's future.

Fitzgerald says the probationers have the right to ask for a confirmation test, yet he admits they're not told they have that option.

Brian Collister asked Fitzgerald during the interview, "Why not do confirmations as a standard procedure?" Fitzgerald responded saying, "That is more up to the D.A. and the judges than it is to me." Collister asked, "But why wouldn't you do a confirmation before sending it to them?” Fitzgerald responded saying "We do confirmations but we don't...we don't do them standard." Collister asked, "But why wouldn't you?" Fitzgerald responded, "Well financially...it's um. It would really hit our budget for one thing."

But that's not true.

We requested the contract Bexar County Adult Probation Department has with Treatment Associates before our interview with Fitzgerald but we didn't get it until July 8th, the day we aired the story and a week after our interview. According to the contract, the department can request a confirmation test at no additional charge.

But Fitzgerald said he sees no reason to change his current procedures.

Collister asked Fitzgerald, "Are you comfortable with the way things are set up now where you do not do confirmations as a standard part of your procedure?" Fitzgerald answered without hesitation "Yes."

And the President of Treatment Associates, Jeff Warner, said he's comfortable with it, too.

"The rate in the positive tests I stand by. I stand by our procedures. I stand by the products that have been used in those procedures," said Warner during an interview in the cramped room where they refrigerate all the urine that tested positive over the past few months.

We also noticed in the contract that Treatment Associates is supposed to keep the urine that tested positive for six months in case the department requests a confirmation test.

But Warner is only keeping them for 90 days.

Because of all the problems the county is now moving to a less sensitive test and trying find a better way to handle the cost of confirmations.

I'm not a lawyer, but maybe some of the barristers in the crowd can help me out. If Fitzgerald a) knows the preliminary tests are inaccurate, b) ignores opportunities for free confirmation tests, and c) insists he stands by a methodology that clearly accused innocent people, doesn't that begin to border on willful negligence?

TV station: False UA positives tolerated in Bexar "because the county wants to save a few bucks."

A San Antonio TV station is preparing an investigative report following up on allegations that the contractor performing urinalysis for the Bexar County adult probation department is using methodologies that produce false positives. From WOAI-TV:

Nobody likes being accused of something they didn't do. But many probationers here in Bexar County say that is exactly what is happening to them. And some are winding up in jail.

News 4 Trouble Shooter Brian Collister is probing problems with the Probation department's drug tests.

Since the county's probation department switched to a new drug testing lab earlier this year, the number of positive drug tests by probationers has skyrocketed.

But many of them say they are clean.

Lani Bennett tested positive for drugs while on probation. She was shocked when she was arrested at the drivers license office because of a warrant for a dirty drug test.

"They didn't give me any warning or anything," says Lani. "I'm (at) DPS trying to get a status of my license cause I'm trying to change over insurances for my car and I'm getting taken out in handcuffs."

She later got a hair test that shows she was clean.

"People are capable of change. I have the legal paperwork to prove that I have changed and I did not use."

And she is not alone.

In fact, a News 4 Trouble Shooters investigation uncovered a flaw in the way the county is conducting these tests. Turns out people go to jail because the county wants to save a few bucks.

The full story airs tonight, and continues a rocky recent stretch for the Bexar adult probation department. Director Bill Fitzgerald fired the whistleblower who first identified problems with the drug tests, but chose to retain the contractor. Then last week, Fitzgerald fired his second in command without giving him or the public a reason.

After beginning a consulting stint recently working for the Innocence Project of Texas, it's struck me that frequently "innocence" issues in the public lexicon are defined pretty narrowly - for the most part limited to murder or sexual assault cases involving DNA exonerations.

But "innocence" is also an issue whenever a probationer is sent to jail because because of a false positive on a urinalysis test, or when errors in breathalyzer technology falsely accuse someone of driving drunk. Faulty forensics aren't just limited to arson or ballistics: High error rates are tolerated in a variety of forensic disciplines.

While some high-profile exonerations have involved alleged police misconduct or prosecutors withholding Brady material, much more frequently innocent people are punished as a result of reliance on unreliable investigative methods and sloppy forensics. From the perspective of the person wrongly accused, however, the motives of authorities promoting false accusations matter very little.

The Dead Messenger: "You do not falsely lock up people and call yourself human."

I'm not sure why there's been no MSM coverage, but whistleblower Sheri Simonelli at the Bexar County adult probation department was fired last Friday after going public with evidence that a private urinalysis lab had changed its protocols in a way that encouraged "false positives" that were then used for detention decisions.

I've come to know Sheri a little through the blog, and from all appearances Bexar CSCD is losing a competent and dedicated employee: Good luck, Sheri. I'm sorry it came to this.

This appears to be the denouement of a longstanding feud between probation director Bill Fitzgerald and employees who wanted to unionize the department. (Sheri is/was the union local head and the lead defendant in a federal lawsuit (pdf) challenging Fitzgerald.) Fitzgerald reacted to unionization proposals by trying to force every employee to submit to "retention interviews," and even trying to out anonymous blog commenters, both ham-handed strategies from which he later backed down.

Payback, though, can be a bitch. Said Simonneli in an email to Grits: "I'm still proud of what I did. You do not falsely lock up people and call yourself human."

Simonelli's firing doesn't end the saga: What will Bexar judges (who govern the probation department as a board) do about shoddy forensic science used by the probation department. They've been silent so far, but the whistleblower's departure drops the matter squarely into their lap. Will Fitzgerald and Co. continue to use the vendor following flawed UA procedures? Probably, until somebody sues over it. I also wouldn't be surprised to see a wrongful termination lawsuit develop. Meanwhile, this latest broadside on the newly formed union can only worsen already sour employee relations at the Bexar adult probation department.

In Sun Tzu's The Art of War, Master Sun wrote that to be victorious, leaders must achieve "The Way," which he defined as "inducing the people to have the same aims as the leadership." By that standard, the Bexar County probation chief has lost his "Way." As near as I can tell from comments on Grits and private emails I've received, Bexar probation officers are as worried, frustrated and on edge as were TYC employees last year at the height of then-Executive Director Dimitria Pope's unhappy and ill-fated reign.

There comes a point when the management utterly loses the respect and fealty of those working under them, when they lose their "Way," and if Fitzgerald hadn't reached that point before last Friday, he's certainly done so now.

Killing the Messenger: Bexar probation chief wants to fire PO who snitched on faulty urinalysis results

Instead of acting to resolve the use of questionable forensics by a private vendor, Bexar County probation director Bill Fitzgerald decided to kill the messenger. He plans to fire Sherri Simmonelli, the head of an employees' group and lead whistleblower regarding the lab, and her co-workers are protesting. Reported KSAT:

Probation officers gathered at the Bexar County Justice Center in support of one of their own, now facing termination because the officer said she spoke to the media.

Sheri Simonelli said she was recently placed on administrative leave pending termination for talking about a county-contracted drug testing lab producing a significant number of high positives.

"They are going to take retaliatory action against this individual for conducting herself in a manner of the highest calling of conscientiousness and conscience and duty to a fair justice system, attroney David Van Os said.

Bexar County currently contracts Treatment Associates on the 700 block of San Pedro Avenue for its drug testing.

In February, the number of positive urinalysis tests jumped dramatically, leading Simonelli and others to begin asking questions.

Simonelli, also president of the Central Texas Association of Public Employees, said some of the positive tests were taken to another lab, which produced negative results.

Fitzgerald of all people should know that problems at the Bexar probation department's troubled urinalysis lab aren't new. It's been producing sloppy or questionable results for much of his tenure. You'd think he'd thank an employee for trying to fix errors instead of fire her over it.

But then, this is Bill Fitzgerald's general modus operandi. He famously announced a couple of years ago just before Christmas that he would have all 430 employees re-apply for their jobs and submit to retention interviews. Why? He was upset some of his employees, including Simmonelli, were trying to form a union.

Now he reacts to news of flaws by a urinalysis lab by firing the employee who caught the errors?

Judges in Bexar County need to rein in Mr. Fitzgerald, and consider shipping him back to Phoenix. He seems a lot more concerned with covering up problems than fixing them. This boorish behavior can have no good result except to allow future problems to fester and further alienate his already disgruntled staff.

Urinalysis another example of forensic science with subjective results

The rate of positive results on urinalyses at the Bexar County probation department jumped fourfold after the private lab doing the tests changed their procedures in February, reports KSAT in San Antonio:

On Monday, the president of the Central Texas Association of Public Employees and a Bexar County probation officer said the high numbers of positives were alarming."Confirmation has come back to the department and we're concerned about those, and also, a lot of defendants on their own have gone out and had hair follicle tests in other labs to confirm their suspicions," Sheri Simonelli said.

Here's another great example of the subjectivity of forensic science. In this case, there exist no concrete standards for how to measure urinalysis results. Reports KSAT, "Jeff Warner, the owner of Treatment Associates, said a test used before a February switch wasn't aggressive enough, and has led to a 35 percent jump in positive drug tests. He said the county's probation department was using an outdated test and an unguarded urine specimen process."

Normally one doesn't think of judging a scientific metric by whether it's "aggressive," but whether it's "accurate." I have no way of knowing which standard lies closer to the truth. But if a change in (unregulated) testing protocols resulted in such dramatic a difference in results, the disparity demonstrates once again how large the error rate can be in common forensic science techniques that most people consider reliable.

Unreliable urinalyses accuse innocent people

Besides the fact that they cost less, why do Texas probation and parole agencies use flawed urinalysis tools that make it possible, even likely that an innocent person will be falsely accused of drug use?

Gotcha! It was a trick question: There is no other reason. Every time this issue comes up there is no credible justification forthcoming from officials giving these tests. Houston Chronicle columnist Lisa Falkenberg reports today on:

long-standing concerns over the accuracy of drug-testing methods at Texas Department of Criminal Justice.

In smaller offices, such as Huntsville, samples are tested in-house by parole officers, not by technicians at certified labs, Collier confirmed. He couldn't tell me offhand how much training the officers get. The offices regulate themselves.

TDCJ uses quick screening tests. These are sensitive to false positives, said Anthony Okorodudu, clinical chemistry director at the University of Texas Medical Branch.

Yet TDCJ has no reliable way of checking for error. If it gets a positive, another part of the same sample is run through the same machine.

Results are not confirmed through a different, more advanced testing method, as is the industry standard in professional labs. ...

Of course, the results are still admissible in parole-board hearings and can lead to revocations, if the offender refuses treatment or has more dirty tests.

Falkenberg frames the issue in terms of "Due process for everyone," but really this is about actual innocence, not technical niceties - false postive tests accuse parolees of using drugs when they didn't actually do them.

It's not just Texas parole departments where undertrained workers conduct flawed "quick screen" urinalyses with little training or oversight. Earlier this year the SA Express News' Elizabeth Allen wrote a story revealing how the Bexar County probation department knowingly condoned false positives (because confirming tests would cost too much) and let urine samples sit around unrefrigerated too long before testing them. (See this Grits post.) The Bexar probation department threw out 15,000 samples last year because they were too old to accurately test.

I've heard about this problem now forever - most criminal defense lawyers know the tests are unreliable, and once or twice a year a reporter somewhere around the state stumbles onto the topic and writes it up as a local story, with the inevitable result that nothing changes. But this is happening everywhere in the state, and at great taxpayer expense. At this point if the cheaper tests aren't accurate or confirmable - and they aren't - they shouldn't be used on anyone. It'd be better not to test at all than knowingly tolerate false positives.

Urinalysis flaws lead to 'most of the time' justice

I've wondered before how it is that accuracy so often appears to have become optional in forensic science? That question arises agains with a report from the SA Express News about the Bexar probation department's urinalysis division ('New eyes' oversee Bexar urinalysis lab," 3-16).

Unrefrigerated urine samples cannot be accurately tested after seven days, but the lab routinely tests and reports results for samples beyond that time, and last summer had to throw out 15,000 samples that had long since expired. Still, they cannot test the volume of samples in a timely fashion, as "four technicians and a manager run up to 19,000 drug tests a month on up to 5,000 urine samples from probationers."

"I can tell you that thing's been a pain in the ass for more than a year," [new lab director David] Abbott said.

The lab still doesn't have enough refrigerators to chill all the urine samples and many sit out unrefrigerated, Abbott said.

Abbot told the paper samples don't sit out past the seven day deadline, but probation officers quoted in the article had plenty of examples where they did. Abbot responded that officers were playing "gotcha," which I'd have to agree is correct: He made a sweeping, categorical statement that was untrue, and somebody said, "No it's not. Gotcha!" But is that really a valid criticism, or just whining from someone caught spinning the story?

Indeed, if the probation department's management wasn't at war with its officers - as of Friday, I heard from a Bexar P.O., Director Bill Fitzgerald was in the "Fs" in his retention interviews - its employees probably wouldn't be outing fibs anonymously in the newspaper, so even if he's right about critics' motivations, it still represents a management failure.

The situation also shows why increasingly defense attorneys rely when they can (i.e., for non-indigent clients) on independent verification of crime lab results. Reported the Express-News:

Even if the samples are screened in time, they aren't as accurate as a "confirmation," a different, more expensive test the county lab can't do.

"They don't keep the samples, they don't confirm the samples, they just don't have the money to do that," defense lawyer Ernest Acevedo III said.

That's why Acevedo sends some clients to private labs after they submit urine samples to the county.

Acevedo said whether he has his clients get an independent test depends on a number of factors. He believes the positive screens usually are accurate, but "'most of the time' isn't good enough in our kind of work."

Abbott agreed confirmation tests are the only way to be certain someone has forbidden drugs in his system, but that they are impossibly expensive for the lab, which is funded by a combination of state grants and money from the basic supervision fund.

So let's review. Bexar doesn't use a confirming test that would make certain whether someone uses drugs. On the less accurate tests they do run, by the tens of thousands, samples are left unrefrigerated for the max possible time, in some cases longer, to the point where 15,000 samples had to be thrown out last summer and defense lawyers don't rely on the lab and pay for private testing. Still, the only reason to test is to give prosecutors and judges information on which to base supervision decisions for the offender!

So they know it's a less accurate test, volume and understaffing preclude careful protocols, but decisions are being made based on the results that affect thousands of probationers' lives. How many probationers are revoked or sanctioned each year because of false positives? Quien sabe? No one knows. No one seems to care.

I find the use of sloppy science in the pursuit of justice abhorrent and irresponsible. I'm always surprised when such situations are tolerated as business as usual. I must admit the whole thing makes me feel naive, like I give too much credit for good intentions to folks inside the system.

It really does seem to be true that accuracy has frequently become optional in forensic science, despite Acevedo's declaration that "'most of the time' isn't good enough in our kind of work." For indigent clients who can't afford independent testing, "most of the time" justice is all they get.

Extra bail conditions: When tough on crime means tough on taxpayers

This is the second in a series analyzing Harris County bail policies and their contribution to jail overcrowding. See Bail blunders boost bulging Harris jail population.

Expanded use of "special conditons" as bail requirements are another big cost-driver undermining Harris County's bail system, according to the recent Justice Management Institute (JMI) consultant's report. Historically, most people who bonded out of the Harris County Jail were placed on "general supervision" while awaiting trial, requiring defendants to comply with the following standard conditions of release:

• Phone check in every two weeks.
• Call in the day before court.
• In-person check-in on court date.
• Notify agency of change of address, phone or employment.
• No travel outside county.
• No contact with complaining witness.

Pretty basic stuff. In recent years, though, local judges wanting to establish their tough-on-crime credentials have taken to tacking on numerous "special conditions," including urinalysis (the most common additional requirement), submitting to home confinement and electronic monitoring, abiding by an evening curfew, and "stay away" orders forbidding contact with alleged victims or witnesses. According to the Justice Management Institute:

While the average number of "general supervision" cases has decreased [between 1994 and 2004], the average number of defendants supervised for compliance with special conditions at any one time has increased from 383 to 1,202. Because the amount of work and skills needed for supervising defendants on special conditions are far greater than for supervising those on general conditions, this has meant significantly greater workloads for agency staff responsible for supervision of defendants.

It also meant more bail revocations for failure to comply, which boosts jail overcrowding and generates extra costs, with little benefit to public safety. "Compliance with some of the special conditions imposed by judges -- including submitting to urinalysis tests, abiding by curfew restrictions, and abstaining from alcohol use -- can be ... difficult to monitor, requiring substantially more staff effort," reported JMI And what's the result of that extra staff effort? More opportunities for defendants to have their bail revoked and wind up sitting in jail awaiting trial.

That means judges who want us to think they are tough on crime are really being tough on Harris County residents' pocketbooks.

Urinalysis requirements in particular, while popular among prosecutors and judges, take up a huge amount of staff time and cause delays throughout the system. Presently in Harris County, "Turnaround times for receiving the results are repotedly very lengthy -- ten days to three weeks if the results of the test are negative, and as long as four to eight weeks if the test of a urine sample is initially positive and confirmatory analysis must be conducted," JMI reported. Fees by defendants cover only a fraction of drug testing costs.

Moreover, forensic lab testing in Harris County has been notoriously unreliable. Who knows if you can even trust the lab results when you get them?

The most frustrating difficulty with the imposition of "special conditions" is that they vary from judge to judge: Some use them extensively, some hardly at all. That means when new money is put into pre-trial supervision, a handful of judges quickly soak up all the funds. According to JMI:

Judges vary widely in the frequency with which they call upon Pretrial Services to monitor defendants' compliance with special conditions. For example, during the first six months of 2004, one County Court judge imposed a total of 1,240 additional conditions on 301 different defendants. At the other end of the spectrum, during the same period another County Court judge imposed 97 such conditions (of which 87 were simply requirements for telephone check-in) on 94 different defendants. The range of variability in the use of special conditions is similarly wide among judges of the District Courts.

That difference is so great one almost wonders whether the distinctions might raise Fourteenth Amendment (equal protection) concerns -- after all, if you and I are arrested and jailed on similar charges, under similar circumstances, there's no justifiable reason one of us should be subjected to urinalyses and a curfew while the other merely checks in by phone every two weeks. JMI recommended that

The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered, for what types of drugs, how and by whom the tests should be conducted, what responses should be made to test results, and when (under what circumstances) the drastic step of revoking bond should be taken.

Indeed, with inmates sleeping on the floor of the jail and no place to house defendants whose bond has been revoked, perhaps the policy should change to require urinalysis very rarely, especially since the county can't afford to revoke anybody's bail, anyway, at least for a dirty urinalysis.

Imposing "special conditions" without special circumstances soaks the taxpayers, with little benefit besides letting judges and prosecutors grandstand as being "tough on crime." I doubt taxpayers would approve if they knew the truth of it.

Next: Subsidies for bail bondsmen.