Court: Pot in prison not a felony

June 10, 2008 2:05:27 PM PDT
New York's top court ruled Tuesday that small amounts of marijuana in prison do not represent "dangerous contraband" under the law, ordering lower courts to reduce two convictions from felonies to misdemeanors with shorter sentences. The Court of Appeals majority said the test of dangerous contraband is "substantial probability" for use in a way likely to cause death, injury, escape or "other major threats" to prison safety or security.

"There is no evidence that such drastic results are likely to occur with the small amounts of marijuana at issue here," Judge Carmen Beauchamp Ciparick wrote. While marijuana can be used for inmate barter or extortion, she said that's true of any other prison contraband like alcohol or food, and lawmakers established a felony category for inherently dangerous contraband, which has been applied to weapons, tools, explosives and potentially deadly drugs like heroin.

"Reliance on the mind-altering effects of small amounts of marijuana to establish dangerousness is misplaced," Ciparick wrote, noting the Legislature in 1977 reduced possession of up to 25 grams of marijuana outside prison to a non-criminal violation.

Chief Judge Judith Kaye and judges Susan Read, Robert Smith and Theodore Jones concurred.

According to the court, Kyle Salters' case involved 9.3 grams of marijuana that his girlfriend tried to bring him at Bare Hill Correctional Facility in 2003. Robert Finley had "three joints" in 2004 at Orleans Correctional Facility. Each was convicted of a felony contraband count, with Salters sentenced to two to four years and Finley to three to five years.

Judges Eugene Pigott Jr. and Victoria Graffeo agreed Finley's conviction should be a misdemeanor, but concluded Salters' 9.3 grams could rise to the felony level of dangerous contraband if it was meant for potentially violent drug commerce in prison, something a jury should decide.

A corrections narcotics investigator had testified that in his 16 years of experience, he found many inmate fights resulted from disputes over drug debts, including "quite a few" assaults and even killings over marijuana.

Eric Kriss, spokesman for the state Department of Correctional Services, said there were 586 incidents of marijuana contraband from June 2007 through May 2008 in New York prisons. He didn't immediately know how many were referred for criminal prosecution, but said prison authorities vigorously pursue internal sanctions with loss of privileges and time in special housing units.

"When you have drugs introduced in prisons it creates all kinds of potential for violence," Kriss said. From 1996 to 2006, 868 prison drug cases were prosecuted, with a 67 percent conviction rate, he said.

"I think the better, more appropriate practice, unless there are extraordinary circumstances, is to treat them all as in-house sanctions, and not an excessive response to what are, for the most part, minor offenses," said Robert Gangi, executive director of the Correctional Association of New York State, a watchdog group.