Subscribe to Here’s the Deal, our politics newsletter for analysis you won’t find anywhere else.
Thank you. Please check your inbox to confirm.
Ashley Remkus, AL.com
Ashley Remkus, AL.com
On a cold, rainy day in early 2019, Frank Cobb was working at a Google data center in Bridgeport, a small town in northeast Alabama, when his color was called. That meant he had to leave his job to take a drug test at a testing facility in Scottsboro, more than 25 miles away. Cobb did not have a car or a ride, so he set out to hitchhike, as he’d done before, often walking several hours before anyone stopped to pick him up.
Like thousands of other Alabamians who have been charged with or convicted of crimes involving drugs and alcohol, Cobb, who is 40, is required by court order to take random drug and alcohol tests through a program called “color code.” Participants are assigned a color, such as watermelon, teal or brown, and required to test on days when that color is selected at random, often about once a week. If they fail, they may be sent to county jail or prison. Cobb was first put on color code in 2012, after being charged with possession of pills. He was re-arrested for possession in 2016 and has been on color code ever since.
Officials in Alabama say color code keeps people like Cobb out of jail and prison while helping them recover from their addiction. But local attorneys and civil rights advocates say that, in many parts of the state, color code is plagued by unreasonable fees and false positive tests, and does not help people stay sober or avoid incarceration. Since 2016, Cobb has been in and out of jail and prison five times for failed drug tests, court records show.
Color code participants also say they face an impossible choice: comply with the program and risk losing their jobs, or stay at work and miss their drug tests, violating a judge’s orders.
Over the years, Cobb said, color code has made it difficult for him to keep a job. He was once fired from a welding gig because he was late to work after a morning drug test. And color code was costly: Cobb paid $20 each time he tested, sometimes multiple times in a week, plus a $40 monthly monitoring fee. Cobb also had to pay about $100 combined every month for court fees and to his probation officer. He lived in a friend’s camper trailer rent-free, but he could not save up enough to buy a car.
As Cobb walked along the busy highway that rainy day last year, a woman named Sandra Goodman pulled over and offered him a ride. In the car to the testing facility, Goodman, who lives in Bryant in northeast Alabama, told Cobb about her family’s experience with color code. She said later in an interview that her relative was in the program for just over a year, yet it cost her family thousands of dollars. “Color code, it’s just a cash cow,” she said. “It’s all about the money.”
Participants in the Jackson County Court Referral and Community Corrections program in Scottsboro, Alabama, complain of high costs per drug test. Joe Songer/AL.com
Court-ordered drug testing programs existed in the United States as early as the 1960s, primarily to track individuals who had already spent time behind bars. Several decades later, the programs were expanded to do pretrial testing. The goal was to keep people with addiction out of jails and prisons and prevent new offenses.
In 1990, Alabama passed the Mandatory Treatment Act, legislation that mandated testing and monitoring people who were convicted of crimes involving drugs and alcohol. State lawmakers at the time called drug and alcohol abuse in Alabama “extensive” and the number of crimes “intolerable.” The new law established the Court Referral Officer Program, which deputized local offices to monitor criminal defendants and report their drug test results to judges.
An individual can be put on color code through the court referral program, or through a separate program called “community corrections,” which allows some non-violent Alabama offenders to serve their sentences in the community. The two programs are overseen by different state agencies—court referral falls under the Alabama Administrative Office of Courts while community corrections is under the Alabama Department of Corrections—but in both cases the drug testing process is administered by local offices, with little oversight from the state.
It’s unclear how much money people in Alabama pay each year for color code testing because the state does not collect that data.
Cheryl Plato-Bryant is the state coordinator for Alabama’s court referral program. Plato-Bryant said in a statement to the PBS NewsHour and AL.com that the program helps courts manage drug cases. Color code tests are just one of the treatment tools they use. Court referral officers “strive to effectively and accurately evaluate a client to appropriately place and refer him, to manage and treat him as a person—to ultimately help him,” Plato-Bryant said.
But attorneys and advocates in Alabama say that, in many counties, color code has transformed from a well-intended alternative to incarceration into a system that penalizes the poor and sets participants up to fail.
In Jackson County, where Frank Cobb lives, participants have complained for years about the fees charged by the Court Referral and Community Corrections office. The program’s Facebook page is filled with such criticisms, though others said color code had helped them turn their lives around.
“Keeps people out of trouble, but cost[s] a lot of money,” one person wrote. “It’s all about money,” wrote another. “[You] have no money then the stress gets to you and boom, back on drugs.”
In December 2017, a small group of Jackson County residents staged a protest outside the county courthouse to decry the costs of color code. Video courtesy of Garry L. Morgan/“In the Boro”
For some participants, the cost of color code has made it difficult to pay rent or bills. Cody Chamblee, who is 29, was on color code in Jackson County from 2015 to 2019 after being arrested for a DUI and marijuana possession, court records show. He said he paid $40 per test nearly every week. (The cost per test in Jackson County has fluctuated over the years and depends on which program a participant is in.) During that time, Chamblee said, he had to sell his truck and couldn’t afford his apartment. “I couldn’t pay my rent or bills because of color code and jail,” he said. “What helped me get clean was my family, not color code.”
Twenty percent of people in Jackson County live in poverty, according to 2018 U.S. Census data, the most recent available—twice the national average. “They just assume you have all these resources and money,” said Chamblee’s court-appointed attorney, Dakota Fox, who said he left Alabama and changed careers in part because of the way the criminal justice system drained his clients of resources. “But $40 [for a drug test] is a lot of money. That’s a water bill or cell phone bill, and you have to be able to have the time to get down [to the facility], and do you even have a car? This is not a county with a lot of money.”
Twenty percent of people in Jackson County live in poverty. Many residents who do court-ordered drug testing find it difficult to afford the program’s fees. Joe Songer/AL.com
About 100 miles southwest in Walker County, known as the epicenter of Alabama’s opioid crisis, Derrick Harden said he was ordered to comply with color code after being arrested and charged with illegal possession of prescription drugs in November 2019. Harden said in addition to taking drug tests about once a week, the program required that he attend classes and Alcoholics Anonymous meetings.
But when Harden, who is 37, got a job delivering pizzas earlier this year, he feared that missing work for his drug tests would get him fired. When his color was called one morning this spring, Harden said, there was no one to cover his shift, so he missed his test and went to work.
Harden said having a job is necessary to pay for the cost of color code—$30 per test in Walker County. But, Harden said, complying with color code puts his job in jeopardy. “I’ve known so many people that do right, but then it gets too expensive. So you stop going,” he said. “It feels like a Catch-22. The system is made to fail you.”
Mark Jarvis, director of Walker County Community Corrections and Court Referral, said the program was not designed to make people fail. “We’re here to make them responsible for their actions and to grow as a person, to overcome their addiction or their disability, whatever it might be, and anything we can do to help them.”
Jarvis said drug testing is just one element of the work his office does. They also connect people with counseling, drug treatment and other services, such as anger management classes, drug education and self-help groups. He said his staff works extra hours—unpaid—to help people meet their color code requirements.
But collecting fees from participants is necessary to fund the office, he said, because there’s little government funding for the program. “We might get grants if we’re lucky,” he said. “Folks gotta get paid.”
The problems for participants stem in part from a lack of state oversight, said Stacey Neeley, executive director of the Court Referral and Community Corrections programs in DeKalb and Cherokee counties in northeast Alabama.
The court referral program is under the supervision of Alabama’s Administrative Office of Courts. But the state agency doesn’t regulate or monitor color code drug testing. The same goes for community corrections, with Alabama’s Department of Corrections exercising little supervision over local offices. Instead, testing is handled at the local level with little to no intervention from the state.
Officials from both agencies said the state doesn’t make any profits from fees collected for color code drug testing, so any profits made at the local level can stay there. Profits are sometimes distributed in a way that is opaque, even to local officials. In some cases, the fees fund employee salaries and local offices, such as in Walker County.
Neeley said he’s developed concerns about stark differences in testing fees as the color code system has spread across Alabama. Participants reported to the PBS NewsHour and AL.com paying between $10 and $60 per test. “Even to charge $35 a test, if they’re going four or five times a month, that’s a pretty hefty fee,” Neeley said.
Local judges decide how to punish people who violate the terms of color code, meaning the consequences also vary from county to county, courtroom to courtroom. When asked about participants’ complaints that missed drug tests were sometimes a result of trying to keep a job, Plato-Bryant, who coordinates court referral for the state, said that they were “not able to accommodate all participants’ work schedules.”
From 2015-19, an average of more than 31,000 people in Alabama were required to comply with color code each year, according to data from the Administrative Office of Courts. The length of time someone is on color code depends on several factors, including their risk to reoffend or the length of their sentence.
State records show that of the 31,075 color code participants in 2019, 37 percent completed the program that year. Each year, some participants are terminated while others continue in the program.
In 2019, the Southern Poverty Law Center (SPLC), a civil rights organization based in Montgomery, investigated drug testing and other facets of community corrections programs in Alabama. The report found “serious flaws in a loosely regulated, user-funded justice system that, in many locales, seems to be focused more on raising money than on rehabilitation or public safety.”
One woman, who was enrolled in the community corrections program for Marion and Winston counties in northwest Alabama, reported to SPLC that she paid $140 for drug testing in a single day, which included fees for monitoring, supervision, testing and rescheduling. Another woman in Walker County reported racking up $347 in color code debt. When she couldn’t pay it and stopped showing up to her tests, she went to prison. “It’s a pay-to-play model that drains millions of dollars each year in fees from participants who mostly struggle to make ends meet,” the report concluded.
Kathryn Casteel, a co-author of the SPLC report, said this “pay-to-play” model existed across the board in the 36 Alabama counties they examined, with just a couple exceptions. “[These programs] are allowed to do whatever they want because no one is holding them accountable,” she said in an interview.
Samantha Rose, a spokeswoman for the Alabama Department of Corrections, which oversees community corrections, said the agency disagrees with the SPLC’s characterization of the community corrections financial model. But Rose acknowledged that participant’s drug testing fees are used to fund their supervision. She also said that the department’s oversight over local programs was “limited.”
There are currently 3,116 people who have been convicted of felonies in the community corrections program, according to Rose, who said that she did not know how many of them are being drug tested.
The high cost of drug tests isn’t just an Alabama problem, as reported in 2018 by Talk Poverty, a project of the Center for American Progress, a left-leaning public policy think tank. Its investigation found that court-ordered drug tests around the country are regularly given at the expense of participants, often making it harder for them to afford treatment.
Tim Guffey is the chairman of the Jackson County Commission, making him the top-ranking official in county government. He said he’s received more than 100 complaints about the color code program over the past several years. Over time, he said, he began to worry not only about how the program drained participants of money with such frequent testing, but also about how little of the money the county was receiving.
Jackson County is located in north eastern Alabama.
Like in many counties in Alabama, color code in Jackson County is operated by largely autonomous nonprofits that set and collect the fees, then distribute dividends to the county. Guffey said that in 2018 he requested an audit of the color code program because he was concerned the county was not getting the amount it was owed. That audit never happened, Guffey said, after the documents he requested were destroyed in a fire at the Jackson County Court Referral and Community Corrections office that summer. At the time, program director Brandon Brown told local media he was uncertain about the extent of the fire’s damage to the office’s files. Alabama’s State Fire Marshal later ruled the fire an arson, and it remains under investigation.
Brown did not respond to multiple requests for comment.
Guffey said he has long tried to bring color code under the control of the county, where fees could be lowered and the income could go back into drug testing and to programs that otherwise support people returning to the community. “There shouldn’t be any profit in it,” he said.
But he said he’s faced opposition from local judges who like the current color code model. Guffey doesn’t understand why. “We’re arresting the same people over and over again. So that means the program’s not working,” he said. “It’s like once you get in the system, it’s hard to ever get out of it.”
Bart Buchanan, the Jackson County circuit clerk, said the county does not keep data on how many people have been through the program or how successful or unsuccessful it has been.
The Community Justice Program at the University of Alabama at Birmingham connects color code participants with drug treatment, assists in finding employment and provides resources to help them successfully complete the program. Amy Yurkanin/AL.com
Not every program in Alabama charges fees participants described as onerous.
Neeley said his program in DeKalb and Cherokee counties does not charge most of its clients drug testing fees. Bailey Davis, director of Community Justice Programs at the University of Alabama at Birmingham, said in their program, community corrections participants aren’t charged for their drug tests, while court referral participants pay as little as $10.
Davis said that case workers intervene early, even before participants have been released from jail, to create a treatment plan. The program connects them with drug treatment, assists in finding employment that’s compatible with the requirements of color code and provides resources to help them successfully complete the program.
UAB also monitors progress, said Davis, rather than failing someone because of one missed test or positive result. Case workers intervene immediately if someone tests positive for heroin or fentanyl due to the risk of overdose, he said.
“What we discovered is that, if clients are not showing up for drug tests, it’s usually either a scheduling difficulty or there are barriers that make it problematic for them to show up,” Davis said. “It could be transportation issues, work issues, child care issues, just all kinds of things. But those can be addressed.”
Located in Alabama’s largest city, the UAB program helps participants with transportation by providing bus passes for those who can’t otherwise get to their color code tests. The program can provide drugs tests at lower costs because the testing is performed by university labs, and the university’s clinical wing can provide on-site treatment. “Admittedly, we have a lot of resources,” Davis said.
In DeKalb County, which borders Jackson County in the hills of northeast Alabama, Neeley said his team works with some local employers to ensure that those enrolled in color code are allowed to take time off to take their tests. The program allows people to test in nearby Huntsville, the home of many of the jobs in the region, or even out of state in neighboring Georgia or nearby Tennessee.
Neeley emphasized that drug testing must be seen as just one tool in the treatment toolbox. Research shows drug testing is most effective at keeping people out of jail or prison and off drugs when used in concert with other approaches, such as drug court, counseling, drug and alcohol education, GED classes and inpatient or outpatient rehab when needed. “We’re trying to help people, not bankrupt them,” Neeley said.
Since being elected to the Jackson County Commission in 2012, Guffey said he’s also heard complaints about another problem, beyond the costs or the logistical challenges. Some participants reported that after months of passing drug tests, they failed a test just before completing the program, and had to continue and pay for another six months to a year.
Over time Guffey grew suspicious about the accuracy of the tests. So, in 2019, he said, he anonymously submitted his urine for a color code drug test. According to Guffey, the test results alleged that he failed for meth, cocaine and marijuana. Guffey also sent his urine to the hospital, which he said showed a clean test.
“If I have a county employee who gets a drug test [at color code], and I have to fire them, I want to make damn sure they’re on drugs. And if the test ain’t right, then….” he trailed off. (When county employees get into an accident at work, for example, they are drug tested at color code.) “Now if I get a positive I’ll send them to the hospital before I fire them because I want to make damn sure.”
Dakota Fox said that during his nearly five years as an attorney in Alabama, he was also troubled by how many of his clients failed drug tests during their last months in the program. “It seemed weird that they would suddenly have a positive, when they had been doing good for so long,” he said.
In court testimony in October 2020, Brandon Brown, the color code director, was asked about false positives. “They happen,” Brown testified, though he defended the tests as largely accurate.
Studies have shown that the urine tests commonly used by color code programs sometimes produce false positive or false negative results. The tests, which are also widely used for workplace and health care drug screenings, are easy to collect, less expensive than laboratory analysis and the results are available quickly. But some over-the-counter cold medicines, poppy seeds and legally-prescribed medications can cause false positives, according to the Mayo Clinic.
Positive urine tests should be considered only “presumptive” before they are confirmed with a laboratory test, said Dr. Jimmie L. Valentine, a Mississippi-based toxicologist who testifies in court cases in Alabama and across the country.
The reliability of the presumptive results from urine tests depends on the specific test that’s used and which drug is presumably detected, according to Mayo Clinic guidance for doctors. Studies have shown that urine tests are more than 92 percent accurate at detecting cocaine and marijuana, but about 74 percent accurate at detecting methamphetamines and about 71 percent accurate for opiates, according to the Mayo Clinic report.
The state doesn’t collect data on the accuracy of drug tests or regulate which tests local offices should use. Plato-Bryant acknowledged that drug tests aren’t foolproof, but said there are safeguards to avoid punishing people whose test results are inaccurate.
“Had Chairman Guffey been enrolled in the [court referral] program he would have been offered the opportunity to confirm his false positive” with additional in-house testing, Plato-Bryant said.
But Dakota Fox, who stopped practicing law in Alabama in February of this year, said color code should go a step further and allow those who get a positive drug screen to go to a hospital and get a test to independently confirm the results, which is not currently allowed. “If I have a false positive why can’t I go to the hospital and get my own testing?” he said. “Especially if you’re looking at umpteen years in prison.”
In its report, the Southern Poverty Law Center highlighted several suggestions for improvement: that the drug testing program would benefit from statewide standards, better oversight and a common fee structure.
At UAB, the Community Justice Programs director Bailey Davis said simple adjustments, such as informing people the night before they are required to appear for a drug test, make it easier for people to comply with color code requirements. It gives participants time to arrange child care, notify their employers or line up transportation. “We’re dealing with human beings who have lives,” he said.
Guffey, meanwhile, continued to work on his own ideas on how to improve color code in Jackson County. While the program already referred its color code participants to outside programming such as Alcoholics Anonymous, Guffey wanted to add an in-house rehab program and GED classes for participants. He continued his fight with local judges to bring it under county control.
Frank Cobb at his home in Stevenson, Alabama. Cobb is still under a court order to attend color code drug tests. He recently got a new job working for the city of Stevenson, but still has no vehicle or other way to get to the drug testing facility in Scottsboro, 20 miles away. Joe Songer/AL.com
Frank Cobb is still under a court order to attend color code drug tests. He recently got a new job working for the city of Stevenson, but still has no vehicle or other way to get to the drug testing facility in Scottsboro, 20 miles away. And he said he still has several years left in the program. “I get so frustrated, I wish they would work with me, but they don’t,” Cobb said. “It makes me so mad to see what people have to do.”
Derrick Harden, who was ordered to comply with color code in Walker County, said he was promoted at the pizza restaurant in October. He now works as a shift lead, traveling between restaurants across several north Alabama counties. He said he stays sober by dedicating himself to his work. But he worries what will happen when he goes before a judge, because of the consequence for missing tests.
“Even though I’m a productive member of society and I’m living right, I just can’t get away from the [criminal justice system],” he said. “I’m afraid I’m going to lose everything.”
This story was reported in partnership with AL.com.
Tip line: Have you been part of a color code or court-ordered drug testing program and want to share your story? Email us at firstname.lastname@example.org
Elizabeth Flock is an independent journalist who reports on justice and gender. She can be reached at email@example.com
Ashley Remkus is an investigative reporter focusing on crime and justice for AL.com in Alabama.
Support Provided By:
Additional Support Provided By: