The Voluntary Act Requirement in Prison Contraband Cases
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THE VOLUNTARY ACT REQUIREMENT IN PRISON
CONTRABAND CASES
INTRODUCTION
When has one committed the crime of introducing prison contraband? This
is an important question when one is visiting a prison, voluntarily or otherwise,
and a question which can be surprisingly difficult to answer. Most state statutes
punishing the introduction of prison contraband look much like California's
statute:
Except when otherwise authorized by law ... any person, who knowingly brings
or sends into, or knowingly assists in bringing into, or sending into, any state
prison ... or within the grounds belonging to the institution, any controlled
substance, . . . any device, contrivance, instrument, or paraphernalia intended to
be used for unlawfully injecting or consuming a controlled substance, is guilty
of a felony ... .
These statutes are straightforward, containing a mens rea, usually knowingly,2
an actus reus, usually introducing, possessing, conveying, etc.,3 and then a list
of prohibited objects. Moreover, the prototypical prison-contraband cases, such
as baking a gun into a cake and mailing it to prison,4 or mailing a friend drugs
in a package designated as legal mail,5 are equally straightforward violations of
introducing-contraband statutes. However, in a subset of prison-contraband
cases, where the defendant is arrested with the contraband already on his or her
person, loaded into the back of a police car, and taken to the county jail, the
violation is not so clear. These cases are complicated by the defendants' simple
defense that they did not want to bring their contraband to jail; rather, their arrest
forced them to bring it into the facility.
Usually, these cases play out like the case of People v. Gastello, where the
defendant was arrested for being under the influence of a controlled substance
1. CAL. PENAL CODE § 4573(a) (2011).
2. ARiz. REV. STAT. ANN. § 13-2505(A)(1) (2016); PENAL § 4573(a); COLO. REV. STAT.
ANN. § 18-8-203(1)(a) (2012); OHIO REV. CODE ANN. § 2921.36(A) (2013).
3. ARIz. REV. STAT. § 13-2505(A)(2) (2016); COLO. REV. STAT. ANN. § 18-8-203(1)(a)
(2012); MO. REV. STAT. § 221.111 (2017); OHIO REV. CODE ANN. § 2921.36(A) (2013).
4. Jesse Rhodes, The File Inside the Cake: True Tales ofPrison Escapes, SMrrHsONLAN.cOM
(June 14, 2011), http://www.smithsonianmag.com/arts-culture/the-file-inside-the-cake-true-tales-
of-prison-escapes-15653967/ [https://perma.cc/WTR3-BLH2].
5. Wilson v. Haney, 430 S.W.3d 254, 256 (Ky. Ct. App. 2014).
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The Voluntary Act Requirement in Prison Contraband Cases
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