§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 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.



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



 



__________



§§710-1022 And 1023 Commentary:



 



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



 



2.  H.R.S. §353-49.