U.S. flag

An official website of the United States government, Department of Justice.

Efficient Casework Policy To Address Emerging Challenges in Seized Drugs

The substances tested in cases involving seized drugs are always evolving. By establishing policies on the most critical samples to test and maintaining ongoing communication with stakeholders, laboratories can more efficiently manage a backlog.
Notes From the Field
Date Published
September 30, 2020

My first day as a fully trained drug chemist at the Central Forensic Laboratory in Kentucky was a memorable one. In 2003, I had just completed my training and was released to work actual cases. My colleagues were thrilled, in part, because I could take on some of their cases and alleviate their mounting workload.

That first day, I received 800 cases to begin analyzing.

Backlogs in forensic science have long been a challenge, but we’ve made huge improvements since my first day on the job. Here in Kentucky, we’ve added more staff over the years and implemented a triaging protocol where we currently test the three items in a case that could provide evidence for the highest potential charges.

These developments have dramatically reduced our backlog, and since about 2010, we have maintained a 10- to 15-day turnaround in our seized drugs section.

However, as laboratories across the country can attest, when our stakeholders get used to a fast turnaround time, we receive more and more requests for samples to be tested. The challenge of meeting an increased demand is further complicated by evolving issues, such as the emergence of novel psychoactive substances and changing public policy on substances — a timely example being marijuana.

Balancing our existing caseload with new, unforeseen substances coming into the lab can seem daunting, but by establishing policies on the most critical samples to test and maintaining ongoing communication with our many stakeholders, laboratories can continue to operate efficiently.

Seized Drugs Testing in Kentucky

There was a time when our labs handled 20,000 cases a year, but that number has increased dramatically over the last five to 10 years. Statewide, we now test between 25,000 and 30,000 seized drugs submissions a year across our six laboratories — and for the past three years, we’ve been pushing 30,000 submissions. Across the labs, we have about 30 full-time drug chemists, meaning each chemist is typically tasked with 1,000 or more cases in a year.

In recent years, this increase has been fueled by the opioid epidemic, though the predominant drug we continue to see in Kentucky is methamphetamine. Methamphetamine makes up about half of all of our submissions, with the rest of our caseload including fentanyl, cocaine, heroin, and marijuana.

Although Kentucky isn’t a huge state, its 120 counties create a dense legal system. Each county has its own circuit court and district court, so we have many different customers with varying opinions on the number of items that require testing for a particular case. We’re always trying to find common ground among our customers, but that is often difficult when we’re dealing with so many jurisdictions and more than 500 local, state, and federal law enforcement agencies.

Efficient Casework Policy

There’s always a trade-off that comes with deciding how many samples to test in seized drug cases. Testing every sample that an officer submits is expensive, time-consuming, and increases a lab’s backlog. On the other hand, testing too few items doesn’t provide our stakeholders the necessary information to make informed decisions about pending cases in the judicial system.

For our laboratories, addressing backlogs is something we’re constantly mindful of, and the solutions vary based on the jurisdiction. In 2003, to address our backlog, we implemented a policy to test only the single item that represented the highest charge in a case. Since the majority of drug cases don’t actually go to trial (e.g., a plea deal is reached in advance), the lower charges in a case are often dropped, leaving our analysis of related drug samples unused.

That policy worked very well for us for a time, but we’ve recently changed the policy after seeing trends in attitudes about how many items should be tested. We now test the three items that carry the highest potential charges in each case.

In speaking with prosecutors, we found that it does matter, in some instances, whether there are multiple drug charges. Prosecutors may want to indict on multiple different charges, if possible, since this approach is especially helpful in addressing “super traffickers” who are trafficking large amounts of fentanyl.

We’re still not testing every sample that comes in, but we’ve followed the three-sample policy since January 2019 and we’re not seeing a substantial increase in our backlogs.

The Importance of Relationships

Here at the Kentucky forensic laboratories, we serve the entire judicial system, including the prosecutors, defense bar, and every other party involved.

Our three-sample testing policy came about from listening sessions we held with our prosecutors. In testing only one sample per case, we would occasionally receive calls from frustrated officers and prosecutors asking why we wouldn’t test more. So, we decided to sit down and discuss why the attitudes toward testing sufficiency were changing and why it was important to test more than one sample now when one-sample testing had been sufficient for many years.

These conversations were instrumental in our decision to change our policy, but it all started with having a working relationship with our stakeholders. Our scientists may be completely focused on doing the analytical work, but along with law enforcement officers, prosecutors, and defense counsel, we’re all working in the same space. We all have a part to play. Without good communication, we would not always understand what another person in the legal process might be experiencing.

Public Policy on Marijuana, Hemp, and CBD

The ever-evolving public policies on hemp, marijuana, and CBD products present new challenges for seized drug chemists.

In 2013, the state legislature in Kentucky passed a law allowing farmers to grow hemp with a license. As industrial hemp production became more mainstream, what started as a local agricultural issue evolved into a more complicated issue involving the transportation of those products. Consider a tractor-trailer with a full load of what may either be a legal shipment of hemp or illegally trafficked marijuana. Because of the visual similarity, the officer at the scene cannot make that distinction. Only chemical analysis in the lab can determine the difference between interstate commerce and interstate drug trafficking.

The explosion of the CBD industry has also presented a whole new world of complications. The growth in the number and availability of CBD products has driven a noticeable increase in the different types of cases we’re receiving.

When industrial hemp was first legalized, we only saw plants coming into the lab for analysis, but now many growers cultivate hemp for the production of CBD oil, also a legal product. With the rise of the CBD industry, we’re now faced with the challenge of differentiating between a CBD product and a marijuana product — from plants and foods to tinctures and oils.

In terms of testing capacity, it’s not necessarily the raw number of cases coming in that is the issue. It’s the time-consuming process of determining how to properly test the sample and then communicating those results to the customer.

Since hemp and marijuana are indistinguishable without a chemical analysis, these cases represent a dramatic departure from traditional seized drug cases. Being able to determine whether the amount of THC in a sample is higher than 0.3% — the legal amount for hemp — brings with it a razor-thin margin of error. So the question becomes, how can we perform quantitative THC testing in the most efficient manner?

From day one of legalized industrial hemp production, we’ve relied on an outside vendor to do the testing. While this is time-consuming and expensive, the needs of the judicial system have exceeded our capabilities.

We now are close to implementing a test in our lab to determine if the THC concentration in a sample is above or below 1%. It is not the 0.3% legal threshold, but we feel that testing to this level is a reasonable first step toward distinguishing hemp and marijuana, as there is little to no market for illicit marijuana with less than 1% THC.

Balancing New Challenges With Existing Caseloads

To balance emerging challenges in seized drugs with our ever-increasing casework, it would be easy to look for the newest piece of expensive equipment or the next new program.

A lot of our success, however, relies simply on having well-trained, dedicated people. Here in Kentucky, we have staff who look for innovative ways to tackle emerging issues while continually improving our policies, processes, and procedures to meet the growing need for forensic analysis. I’m proud of the smart and inquisitive forensic scientists here in Kentucky who are always thinking about the next best thing.

As forensic analysts, we should always be in an iterative cycle of testing, evaluation, and improvement. We’re always going to evolve and hopefully improve our processes. In doing so, we’re going to develop new types of analysis that result in more requests for testing.

Finally, it’s important for forensic analysts to look at the criminal justice system as a multifaceted operation. All the participants have unique perspectives and many stakeholders view a particular case with different insight. Forensic science sits at a unique intersection between the various players in the criminal justice system. Knowing how we all interact with each other along the way is critical to improving the system as a whole.

About Notes From the Field

The National Institute of Justice (NIJ) is the research, development, and evaluation arm of the U.S. Department of Justice. NIJ aims to address the critical questions of the criminal justice field, particularly at the state and local levels.

NIJ Director David Muhlhausen developed the Notes From the Field series to allow leading voices in the field to share their strategies for responding to the most pressing issues on America’s streets today.

Notes From the Field is not a research-based publication. Instead, it presents lessons learned by on-the-ground criminal justice leaders, from years of experience and thinking deeply about criminal justice issues.

Date Published: September 30, 2020