Contact Me for a Free Consultation 405-310-9890

Blog

Contraband in a Penal Facility

Posted by E. W. Childers | Oct 03, 2019 | 0 Comments

It is illegal for anybody to bring certain forms of contraband into a jail or prison in Oklahoma.

The Statute

57 O.S. §21 Provides that persons bringing guns, knives, bombs, or any dangerous instrument, any controlled dangerous substance, any intoxicating beverage or low-point beer, money or financial instruments for anyone other than the inmate or their spouse (including tax returns!) is guilty of a felony and subject to a penalty of from 1 to 5 years in prison.

It provides that an inmate in possession of the above items is subject to a term of 5 to 20 years in prison and that inmates with two or more prior felony convictions are subject to a term of 10 to 20 years in state prison.

Bringing tobacco into a penal facility or having it as an inmate is a misdemeanor and will get you up to a year in the county jail.

All of the above actions are  also subject to substantial fines in addition to the time in custody.

How does this come up?

Supposing that you have been charged under the authority of this statute, what's going to happen in your case? Well, there are four (update: five) fact patterns that are prevalent regarding the application of this statute:

the first one is being found in possession while an inmate. For example, an inmate is found with a knife or some heroin or whatever.  Unless he can show he didn't actually or constructively possess the contraband he is likely to get some prison time tacked on to his current sentence.  One way of showing a lack of such possession is to point out that more than one person occupies a cell or the contraband was hidden particularly well (behind a ceiling tile, for instance).

The second fact pattern is about a visitor trying to smuggle in contraband. Generally it's taped between their legs under their skirt (it's usually women) and they try to smuggle it in and to an inmate by passing it under a table. Generally there is video of the incident and the prison official watching the video sees all the awkward maneuvering of the visitor. Inmates are searched prior to visits to ensure they have nothing on them. After the visit is over they search the inmate and, having found some contraband that wasn't found during the search that occurred prior to the visit, then accuse the visitor of smuggling what they found by filing a police report.

The third fact pattern is about an employee of the facility bringing in contraband and distributing it to prisoners in exchange for cash (sometimes for sex). This one probably works pretty well since the employee has a better chance of understanding how people get caught smuggling in contraband. But, if you read the papers, plenty of people get caught doing this every year, like clockwork.

The fourth fact pattern is more interesting.  A person is arrested for whatever reason.  They are read their Miranda rights (and keep their mouth shut) and brought to the county or municipal jail by the police or sheriff.  They are searched upon being booked into the jail and the jailer finds contraband.  The contraband is reported to the District Attorney who promptly files a felony charge of bringing contraband into a penal facility.

Update. The hot new method for getting contraband into prisons and jails appears to be an outsider attaching it to a drone and then dropping it into the yard of the prison at a prearranged time. The yards are recorded so the inmate is often caught receiving the contraband, but it's apparently a lot harder to catch the drone operator since nobody is looking outside the prison. Drones can be pretty cheap while cell phones appear to be extremely valuable in the jail so this method is not really very surprising.

Problems for the Prosecution

The problem here, for the State, is that with any crime they have to prove willfulness although the statute only specifically mentions willfulness as to electronic devices. My position is that the word "brings" implies willfulness in the context of contraband.

Applying this to the the fourth fact pattern above if the defendant didn't voluntarily go to the jail, then when did he willfully carry contraband into it?  In discussing this issue with prosecutors they tend to indicate that the defendant should have disclosed the presence of the contraband prior to being taken to the jail. However the defendant has a Constitutional right to refrain from incriminating himself and he must be prepared to assert his right through counsel. Whether pursuing this defense before a jury is a good idea in any particular case will depend upon the facts and circumstances unique to each case. Is the mere possession of the contraband (such as drugs) a misdemeanor? If so, then it may be wise to put the matter on for trial and seek conviction on the lesser included offense of drug possession.

General Advice

If you're being arrested and have something on your person that isn't contraband outside a penal facility and the cops don't find it when they search you, then you should definitely disclose it (for instance, cigarettes, a pocket knife, or a cellular phone).  You won't incriminate yourself by declaring that you possess an item that is not ordinarily contraband.  This is probably the only time I would ever advocate talking to the cops without a lawyer present.

About the Author

E. W. Childers

I am a husband, father, Army veteran, and attorney here in Norman, Oklahoma. I've been practicing law throughout Central Oklahoma since 2006 shortly after I graduated from the OU College of Law. In my practice I have emphasized Family Law, Criminal Defense, and Personal Injury. I like to help peo...

Comments

There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Menu