2013 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
710. Offenses Against Public Administration
710-1023 Promoting prison contraband in the second degree.

§710-1023 Promoting prison contraband in the second degree. (1) A person commits the offense of promoting prison contraband in the second degree if:

(a) The person intentionally conveys known contraband to any person confined in a correctional or detention facility; or

(b) Being a person confined in a correctional or detention facility, the person intentionally makes, obtains, or possesses known contraband.

(2) "Contraband" means any article or thing, other than a dangerous instrument or drug as defined in section 710-1022(2), that a person confined in a correctional or detention facility is prohibited from obtaining or possessing by statute, rule, or order.

(3) Promoting prison contraband in the second degree is a class C felony. [L 1972, c 9, pt of §1; gen ch 1993; am L 1999, c 23, §1]

COMMENTARY ON §§710-1022 AND 710-1023

These sections penalize the introduction into correctional or detention facilities of materials likely to be used to effectuate escape or otherwise contravene prison rules. Where the materials involved are intrinsically dangerous, to the actor or others, the offense is made a class B felony. Otherwise, it is a class C felony. It is clear that the peculiar population in correctional and detention facilities warrants the reinforcement of regulatory measures by criminal penalties.

The definition of "unapproved dangerous instrument" is intended to ensure that it is not criminal "for a prisoner to have articles of potential danger when they are made available to him by prison authorities, e.g., in connection with tasks assigned to the prisoner."[1]

The definition of "unapproved drug" is intended to allow prison authorities to regulate the use of drugs by prisoners under their control. References to "narcotic drugs" or "dangerous drugs" would make the regulatory power of prison authorities depend on the statutory definition of those terms; a result which is undesirable. The power of prison authorities ought not to depend on the ability of the Legislature to continually enact amendments which reflect the current drug market. Furthermore, definitions of those terms for purposes of drug abuse offenses would not necessarily serve the needs of prison population control.

Previous Hawaii law made it unlawful for one to bring into or to have possession of "any alcohol, harmful drug, narcotic drug in any amount, or firearm within or on the grounds of" any detention facility, "unless in the course of his duty or profession, without the permission of the superintendent" in charge of the facility.[2] This former offense corresponds roughly to promoting contraband in the first degree in its coverage and penalty. The Code removes alcohol from the first degree offense, but otherwise expands the offense by including "dangerous instruments," not just "firearms." For example, crowbars and knives, as well as pistols, would be covered. Moreover, the statutory definition of "harmful drug" was "specific" in stating the types of drugs regarded as "harmful." The Code makes the definition "procedural" and requires the prior approval of the supervisor of the facility. The residual second degree offense is an addition to the existing law.

SUPPLEMENTAL COMMENTARY ON §§710-1022 AND 1023

The Proposed Draft had limited the offense of promoting prison contraband to detention facilities. When the Legislature adopted the Code, it added correctional facilities to clarify that the offenses apply to diagnostic and rehabilitation programs as well as detention facilities. Conference Committee Report No. 2 (1972). The Legislature also raised the penalties to class B felony and class C felony, instead of class C felony and petty misdemeanor, as recommended by the Proposed Draft.

Act 99, Session Laws 1976, amended §710-1022 to provide more workable definitions for materials prohibited from introduction into correctional and detention facilities. The term "unapproved dangerous instrument or unapproved drug" was replaced by "dangerous instrument or drug" and the meanings of "dangerous instrument" and "drug" were tied to the meanings set forth in §707-700(4) and §712-1240(1) to (3) and (5) to (7).

Act 23, Session Laws 1999, amended §710-1023 by clarifying the definition of contraband as used for the offense of promoting prison contraband in the second degree. The legislature found that §710-1022 (relating to the offense of promoting prison contraband in the first degree) deals exclusively with dangerous instruments and drugs. Section 710-1023 (relating to the offense of promoting prison contraband in the second degree) also includes dangerous instruments and drugs within the definition of "contraband". The term "contraband" as used in §710-1023 includes any article or thing which the inmate is prohibited by law to possess. By definition, this would include dangerous instruments or drugs which are already prohibited in §710-1022. As a result, the prohibitions in §§710-1022 and 710-1023 overlap. Under a current Hawaii supreme court ruling, if two degrees of an offense overlap, the offender must be charged with the lesser offense. As a result, §710-1022, which carries the higher class B felony penalty, is currently ineffectual and cannot be utilized by prosecutors. The legislature found that the Act clarified the ambiguity in the law and gave effect to the original legislative intent of the two provisions. House Standing Committee Report No. 432, Senate Standing Committee Report No. 1388.

Case Notes

As suspect classification or fundamental right was not involved, and based upon dissimilar statutory treatment generally accorded to possession of marijuana as opposed to alcohol, where there was a rational basis for dissimilar punishment, §710-1022 did not violate defendant's equal protection right because it imposed a more severe penalty for marijuana possession than for alcohol possession under this section. 92 H. 217 (App.), 990 P.2d 115 (1999).

Subsection (1)(b) (1993) is a lesser included offense of §710-1022(2)(b). 92 H. 217 (App.), 990 P.2d 115 (1999).

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§§710-1022 And 1023 Commentary:

1. M.P.C., Tentative Draft No. 8, comments at 137 (1958).

2. H.R.S. §353-49.