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Can you score 25 points where the defendant smuggles tobacco and laundry detergent into a prison?

Question as originally presented: I have two PSIRs I’m working on. One is the father of a Prisoner, who pleaded to Prisons-Furnishing Contraband to Prisoner in Prison 800.281 and also the son, who is the prisoner, who pleaded to the same Count. The Son (prisoner) contacted his father via phone and advised that his father must smuggle in a package to the prison in order to cover his prison debt. Another inmate gave the father instructions to meet with a dealer, who gave him a package and instructed him to sneak into a hospital that does the laundry for the prison. Place the package into a laundry bin, that would later be loaded into a prison semi-truck, and later unloaded by prison inmates. The father tried multiple times to get a package into a laundry bin, making multiple trips to the hospital (verified), was eventually successful. Prison investigators and Troopers intercepted the phone calls and monitored the father for days, viewing him go to the hospital more than once. On the day the package successfully made it into a laundry bin, prison inspectors did not find the package on the truck upon arrival at the prison. It was later discovered in the prison. The package was already opened and they only recovered Tobacco and laundry detergent, which is also contraband. It was determined that the son, prisoner, was in on the scheme manipulating the father to participate in smuggling. Does the fathers participation of introducing contraband to the prison, constitute the scoring of OV 19. The prison inspector made it known that contraband is a threat to the security of a Prison. If it is not scorable, is it possible to score for the Prisoner (son)?

OV 19 should be scored at 25 points when “[t]he offender by his or her conduct threatened the security of a penal institution or court.” MCL 777.49(a). Whether you can score 25 points under OV 19 for threatening the security of a penal institution in regard to the father and/or the son comes down to whether the contraband brought into the prison was the type of thing that threatens the security of a penal institution. It has been made clear by caselaw that bringing controlled substances into a prison is threatening to the security of the prison and justifies 25 points under OV 19. For example, the trial court properly scored 25 points for OV 19 where the defendant smuggled heroin into a prison and delivered it to a prisoner. People v Dickinson, 321 Mich App 1, 24 (2017). The “delivery of an unquestionably dangerous drug like heroin into the confines of the prison threatened the safety and security of both the guards and the prisoners, and, therefore, threatened the security of a penal institution.” Id. at 23-24 (noting that “MCL 777.49 by its language does not limit the scoring of 25 points for OV 19 only to offenders who smuggled weapons or other mechanical destructive devices into a prison”). In People v Carpenter, 322 Mich App 523, 531 (2018), the Court noted that “[t]he smuggling of controlled substances into a jail is certainly a threat to the security of a penal institution because of the dangers of controlled substances to the users and those around them.” (In Carpenter, 25 points were properly scored for OV 19 where the defendant attempted to smuggle drugs into the jail and assaulted another inmate). However, in your case tobacco and laundry detergent were the only contraband items discovered, so presumably, they were the only contraband items smuggled into the prison. On the one hand, both items are contraband, at least in the way the defendants used them; however, unlike controlled substances they are not “unquestionably dangerous” like heroin or another controlled substance as noted by the Court in Dickinson. You can argue that tobacco should be treated the same way as a controlled substance assuming it is banned throughout prisons for all purposes and constitutes something of value to the prison population. Laundry detergent is a closer case even if considered contraband because it is likely not banned in all locations and for all purposes; accordingly, the court would have to be convinced that smuggling even something that is not necessarily completely banned in prison constitutes a threat. However, you can score OV 19 on the basis of the tobacco alone if it is determined to sufficiently threaten the security of the penal institution similar to a controlled substance.

INTERVENING CASE LAW UPDATE: In People v Dixon, ___ Mich ___, ___ (2022), the Court held that where a prisoner possessed a cell phone, “the nature of the cell phone possession [was] important to determining whether it ‘threatened the security of a penal institution’ because cell phones have many nonthreatening uses.” Accordingly, the court was required to assess the conduct of the prisoner beyond the mere possession of the cell phone to determine whether it threatened the security of the prison; simply possessing the phone without any other evidence was not sufficient to support a score of OV 19. Id. at ___. 

If it is determined that the tobacco threatened the security of the penal institution, you can score both the father and the son, because the father obviously is the one who brought those items into the prison, and your facts support the conclusion that the son is the one who came up with the idea to smuggle the items in, convinced the father to do it, and facilitated their retrieval once inside the prison. There is no caselaw analyzing a situation involving smuggling items into a prison that directly addresses the situation your question presents, and ultimately, it is a question of law for the court to decide.

Tags: OV 19

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