March 24, 2004

Commissioner Glenn S. Goord
NYS Department of Correctional Services
Albany, New York

Re: Use of Ion Scanners on Visitors in New York State Correctional Facilities

Dear Commissioner Goord:

On behalf of the New York Civil Liberties Union, we write to express our deep concern about the New York State Department of Correctional Services’ use of “ion scanners” in state correctional facilities to deny prison visitation to families and friends of inmates. Since DOCS recently initiated a pilot program introducing ion scanners in DOCS facilities, the NYCLU has received numerous complaints from visitors describing troubling experiences of being barred from visitation based on ion scanner test results. We also understand that the DOCS Inmate Grievance Committee has raised concerns about this new program.

We recognize the state’s legitimate interest in assuring that contraband does not enter DOCS facilities, but the information available to us suggests that DOCS is implementing the ion scanning program in a way that results in innocent visitors being denied visitation wrongly, unfairly, and unnecessarily. We therefore write to bring our concerns to your attention and to request a meeting with you and your staff to discuss a suspension of the program and the implementation of fundamental changes in the program that would allow it to serve DOCS’ interests while respecting the privacy and due process rights of visitors.

Background

As we assume you know, ion scanning is a technology that can detect minute traces of drugs and explosives from clothing and a wide array of other surfaces. In an effort to reduce the quantity of drugs and prevent explosives from entering New York State correctional facilities, we understand that late in 2003 DOCS began a pilot program to test ion scanning to detect contraband on visitors entering facilities in the Elmira and Greenhaven hubs, including Sing Sing Correctional Facility.

Under DOCS procedures and practices, all visitors selected for ion scanning are required to submit to a scan; those who refuse to be scanned are prohibited from entering the facility. The officer operating the ion scanner takes the hand-held scanning device and passes it over at least three areas including, but not limited to, the individual’s hands, shoes, areas of clothing such as pant pockets and the waistband area, personal items, handbags, and packages. An alarm alerts the ion scanner operator when the device detects even microscopic traces of certain basic chemicals.

If a positive reading results, a second scan is to be performed on the same area that elicited the positive result. If the second test is positive, then DOCS bars the visitor from visitation for two consecutive days. No further investigation is conducted into whether the individual actually possesses illegal drugs, even though the machine can only detect contact with traces of chemicals that may or may not have come from controlled substances. Visitors are not allowed the opportunity to receive a pat frisk or any other type of search after a positive test result. Neither is an opportunity for noncontact visits provided. If the visitor testing positive is a minor child, that child’s parent, or other escort, is also denied visitation.

After a positive test result or a refusal to be scanned, DOCS takes a photograph of the visitor and copies the visitor’s driver’s license or other identification card. These documents are attached to the positive ion scanner results and distributed to members of the ion scan team. The results, without the photographs, are also distributed to prison superintendents and the Inspector General.

Reports of Individuals Wrongfully Denied Prison Visitation

In just the few months since the ion scanning pilot project began, the NYCLU has received numerous phone calls and letters from individuals mystified by the results of the scan and distraught by their powerlessness to prove their innocence. Many individuals who have contacted the NYCLU traveled long distances to visit their husbands, sons, grandsons, and other family members and friends to aid in their rehabilitation, only to be turned away at the door. What follows are just some of the many complaints that illustrate the problems inherent in using positive ion scanner results as conclusive evidence that someone is bringing illicit substances into prison.

  • An inmate’s wife traveled six hours to visit her husband in prison, as she has done regularly since his incarceration. This trip was particularly special to both of them because it was the woman’s birthday. A couple of hours before being scanned she had taken antibiotics prescribed by her doctor. She was shocked when told that she tested positive for cocaine and would not be able to visit her husband for two consecutive days. Determined to prove her innocence, she offered to take a drug test and to be arrested if they could find any drugs on her. Both requests were denied. She asked to see the test results and to speak to a supervisor. These requests, too, were denied. She inquired as to whom and how to issue a complaint and was given the ambiguous response that she needs to take it up with Albany. She spent several hours upset and frustrated waiting all day for her ride to take her home.
  • Another woman, who was taking codeine-based painkillers prescribed by her doctor for back treatment, tested positive for heroin with the ion scanner. Alarmed by the results, as she has never even seen heroin let alone used or possessed any illegal narcotics, she asked to be searched, but at no avail. She was denied visitation for two days. Determined to visit her loved one even at the expense of her own health, after the incident she stopped taking her medication.
  • One woman whose job requires her to handle lots of cash was devastated when she was informed that she tested positive for cocaine and heroin. She asked to be searched, but the officers told her that they could not do so. The next time she went to visit her husband in prison one of the correctional officers jokingly asked her, “What’s on your hands today?” Then, he told her that on the same day she was scanned, he asked the ion scan team to test him; he, too, tested positive for cocaine and heroin. He reasoned that he had touched people and money all day.
  • After working all day, a man from New Jersey drove eight hours to see a childhood friend who had lost both of his parents and was having a difficult time in prison. After he was tested with the ion scanner and the results were positive for cocaine, he insisted that he does not use drugs and offered to be searched. He noticed that the machine was not cleaned after prior use and that the two individuals tested before him also tested positive for cocaine. Having gone to the prison with another friend who was not scanned, he waited six hours before driving all the way home.
  • The mother of a terminally ill inmate and her husband living in Staten Island travel about six hours every time they visit their son. On one occasion, when the inmate’s mother arrived with her son’s friend, an officer grabbed the young man by the arm and told him to go with him. The mother said that they were not going to visit if they were going to be scanned. While the officer maintained hold of the friend’s arm, the inmate’s mother asserted their right to leave. The officer refused to let either of them leave and told the young man that if he refused to be scanned then he’d be considered guilty and he’d be arrested. The officer then pulled the inmate’s friend inside the scanning room. Although he tested negative for drugs, he was fingerprinted and his picture was taken. On top of the visitor’s detention and forced submission to the scanning device, the inmate’s mother is extraordinarily concerned that she or her husband may at some point unknowingly come in contact with contraband, be chosen for ion scanning and test positive, and not be allowed to see their son who has little time to live.
  • One person who tested positive for heroin reported that the next five visitors in a row who were scanned after her all tested positive for heroin. The individual noted that after the ion scan tester dropped swabs on the floor a woman on the ion scan team whose job entails filling out paperwork handed the ion scan operator a new container of swabs that she had opened without gloves.
  • A woman who was startled by the results of an ion scan performed on her informed us that the young man scanned before her was also shocked when he tested positive for drugs. She told us that the man expressed deep concern about the ramifications of this erroneous information getting released because he works for the military.

The NYCLU has received reports of many more examples of other similarly disturbing stories of inappropriate denials of inmate visitation. None of the individuals were given or even allowed to see the results of the actual scan nor were they provided an opportunity to show that they were not carrying illegal drugs. Some of them were so upset, having no means of exculpation, that they promptly had independent drug tests performed at their own expense; all of the test results were negative. All of the complainants are deeply concerned that records of the positive test results impugn their reputation, stigmatize them as drug users or traffickers, and have been disseminated to various public officials for other types of misuse. Despite the use of random scanning for the general public, these visitors have been targeted for subsequent scans. They are fearful prior to each visit, not knowing whether they will be denied visitation. All the while, the inmates they seek to visit are denied the opportunity to see their families and friends.
Beyond individual complaints, we have been provided a copy of a document prepared by the DOC Inmate Grievance Committee that indicates that inmates have been filing internal complaints about the denial of visitation based on ion scanning. That document additionally suggests the Inmate Grievance Committee itself is troubled by the reports it is receiving about the DOCS ion scanning program.

Ion Scanners Alone Do Not and Cannot Determine Drug Use or Possession

That there appear to be serious problems with DOCS’ ion scanning program is not a surprise. Simply put, ion scanners are not valid as the sole basis for excluding a prison visitor because the devices can determine neither drug use nor possession.

Rather, such devices might be useful as the beginning of a chain of information-gathering leading to finding contraband and denying visitation or not finding contraband and permitting visitation. This is precisely how metal detectors are used in correctional facilities (as well as in airports and public buildings). Indeed, the initial signal from a metal detector is not validly interpreted to mean that the individual is carrying a weapon. Only further steps can rule out many other non-threatening sources of the signal. Similarly, proper interpretation of ion scanner test results is critical.

Using positive ion scanner results alone to conclude that a person is bringing illicit substances into prison presents several problems. The research, development, and evaluation agency of the U.S. Department of Justice issued a report evaluating contraband drug detectors for law enforcement purposes cautioning the limitations of the technology. First, ion scanners detect chemicals that are derived from the building blocks of many substances other than controlled substances. In particular, the Department of Justice reported that the technology cannot distinguish between two different substances that are composed of ions with similar size and mass. This means that even an innocuous substance can be identified as illegal contraband. Such an event is called a “false positive” and to date, there are a number of substances that can cause this result, including medicine and painkillers, perfumes, body lotions, poppy seeds, and chlorine baby wipes.

Second, innocent, inadvertent contact with drugs is frequent and widely acknowledged. For example, numerous scientific studies have shown that drug residue is commonly found on currency. In particular, cocaine attaches to bills, which in turn contaminates other materials with which it comes in contact. Third, the machines themselves can become contaminated from residues left in the equipment from prior scans. Indeed, extremely small amounts yield a positive signal. Even DOCS’ written procedures acknowledge the machine’s sensitivity, providing that detection levels need to be “adjusted to eliminate[] lower levels of detection that may occur through casual contact, which may occur if a person unknowingly handled contaminated objects.”

While DOCS has claimed that the manufacturer and DOCS have conducted thorough tests and found these problems nonexistent, these tests have not been made available to the public to our knowledge. Moreover, the numerous reports we have received of implausible positive test results call into question the validity of these claims.

Other States Have Implemented Safeguards or Altogether Stopped Using Ion Scanners in Prisons

Other state corrections agencies that have used ion scanners in prisons have come to recognize that ion scanners are not valid as the only grounds for excluding prison visitors.

For example, in Florida, the Department of Correction takes no action against a visitor testing positive unless a subsequent search produces contraband. According to the Florida Inspector General, an alarm alert from an ion scanner test needs to be interpreted because of the ease with which someone can come into contact with drugs and thus test positive for drugs. The Inspector General informed us that the agency’s procedure and practice of using ion scanners as a random interdiction strategy on visitors, inmates, employees, and wardens serves only as the basis for further inquiry and never as grounds for denying visitation. If an individual tests positive, then a pat down search is conducted in a private room and a canine search is conducted on the outside of the person’s car. A visitor is denied visitation only if illicit drugs are actually found, and then the proper law enforcement agency is notified.

In Massachusetts, the state corrections agency stopped using ion scanners altogether after being sued for using ion scanners to deny prison visitation. In Bouchard v. Mahoney, which was filed in March 2001, the plaintiffs challenged the agency’s use of the device to deny visitation based on a positive test result even when the individual is not carrying illegal drugs, had not used illegal drugs, and had not knowingly been exposed to illegal drugs violates state regulations and the federal Constitution, among other laws. After the parties engaged in settlement negotiations, the state Department of Correction issued temporary regulations incorporating some recommendations made by plaintiffs’ attorney. These regulations were to be in effect for 60 days, but during that period the corrections agency decided to abandon the technology.

* * *

We therefore are concerned that the DOCS ion scanning program, as it is being implemented, is unfairly, improperly, and unnecessarily resulting in innocent people being denied visitation. These denials raise serious due process concerns, and DOCS’ collection of photographs and identifying information through its ion scanning program raise significant privacy concerns.

We therefore request that you suspend the DOCS ion scanning program and consider instituting fundamental changes, which can be made without detracting from the state’s legitimate interests in keeping contraband out of DOCS facilities. We thus request a meeting with you and appropriate DOCS staff to discuss this matter.

Sincerely,

Christopher Dunn
Associate Legal Director

Dawn Yuster
Staff Attorney

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