5.18Bringing, Selling, Giving, Furnishing, or Otherwise Providing Access to a Prescription Drug or Controlled Substance in a Correctional Facility
“(1) Except as provided in [MCL 800.2821], a person shall not sell, give, or furnish, either directly or indirectly, any alcoholic liquor, prescription drug, poison, or controlled substance to a prisoner who is in or on a correctional facility or dispose of that liquor, drug, poison, or controlled substance in any manner that allows a prisoner or employee of the correctional facility who is in or on a correctional facility access to it.
(2) Except as provided in [MCL 800.282], a person who knows or has reason to know that another person is a prisoner shall not sell, give, or furnish, either directly or indirectly, any alcoholic liquor, prescription drug, poison, or controlled substance to that prisoner anywhere outside of a correctional facility.
(3) Except as provided in [MCL 800.282], a person shall not bring any alcoholic liquor, prescription drug, poison, or controlled substance into or onto a correctional facility.
(4) Except as provided in [MCL 800.282], a prisoner shall not possess any alcoholic liquor, prescription drug, poison, or controlled substance.” MCL 800.281.2
“(1) A person is not in violation of [MCL 800.281] if all of the following occur:
(a) A licensed physician certifies in writing that the alcoholic liquor, prescription drug, or controlled substance is necessary for the health of the prisoner or employee.
(b) The certificate contains the following information:
(i) The quantity of the alcoholic liquor, prescription drug, or controlled substance which is to be furnished to the prisoner or employee.
(ii) The name of the prisoner or employee.
(iii) The time when the alcoholic liquor, prescription drug, or controlled substance is to be furnished.
(iv) The reason why the alcoholic liquor, prescription drug, or controlled substance is needed.
(c) The certificate has been delivered to the chief administrator of the correctional facility to which the prisoner is assigned or at which the employee works.
(d) The chief administrator of the correctional facility or the designee of the chief administrator approves in advance the sale, giving, furnishing, bringing, or possession of the alcoholic liquor, prescription drug, or controlled substance.
(e) The sale, giving, furnishing, bringing, or possession of the alcoholic liquor, prescription drug, or controlled substance is in compliance with the certificate.
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(3) [MCL 800.281(3)] shall not apply to the bringing of alcoholic liquor, prescription drugs, or controlled substances into or onto a correctional facility for the ordinary hospital supply of the correctional facility.
(4) [MCL 800.281(3)] shall not apply to the bringing of any alcoholic liquor, prescription drug, poison, or controlled substance into or onto a privately operated community corrections center or resident home which houses prisoners for the use of the owner, operator, or nonprisoner resident of that center or home if the owner or operator lives in the center or home, or for the use of a nonprisoner guest of the owner, operator, or nonprisoner resident.” MCL 800.282.
Violation of MCL 800.281 is a felony punishable by:
•imprisonment for not more than five years; or
•a fine of not more than $1,000; or
•both. MCL 800.285(1).
“If the delivery of a controlled substance is a felony punishable by imprisonment for more than 5 years under [Article 7 of the PHC], a person who gives, sells, or furnishes a controlled substance in violation of [MCL 800.281] shall not be prosecuted under this section for that giving, selling, or furnishing. If the possession of a controlled substance is a felony punishable by imprisonment for more than 5 years under [Article 7 of the PHC], a person who possesses, or brings into a correctional facility, a controlled substance in violation of [MCL 800.281] shall not be prosecuted under this section for that possession.” MCL 800.285(2).
1.Conduct Punishable Under MCL 800.281(1)
A prisoner can be convicted under MCL 800.281(1) without ever leaving the prison if he or she is responsible for bringing the contraband into the prison. People v Lewis (On Remand), 97 Mich App 650, 652 (1980) (holding the defendant’s conviction under MCL 800.281(1) was proper because the defendant was directly responsible for bringing the contraband into the prison where the defendant, a prison inmate, employed agents to pick up whiskey and marijuana outside of the prison and smuggle it inside where others would unload it, repackage it and deliver it to the defendant.)
“[T]he term ‘prisoner’ as defined in MCL 800.281a(g) . . . include[s] all parolees who have not yet been released.” People v Armisted, 295 Mich App 32, 39, 41 (2011) (holding that a parolee who was an inmate at a community residential center had not yet “been released from confinement or sent into the community at large[]” and had therefore not been “released on parole” within the meaning of MCL 800.281a(g)).
“The chief administrator of a correctional facility may search, or have searched, any person coming to the correctional facility as a visitor, or in any other capacity, who is suspected of having any weapon or other implement which may be used to injure a prisoner or other person or in assisting a prisoner to escape from imprisonment, or any alcoholic liquor, prescription drug, poison, or controlled substance upon his or her person.” MCL 800.284.
4.MCL 800.281(4) is a Strict-Liability Offense
The elements of MCL 800.281(4) (prisoner in possession of a controlled substance (PPCS)), are: (1) that the defendant is a prisoner, and (2) that the defendant possessed a controlled substance or other item proscribed by MCL 800.281(4), “‘i.e., that the defendant had actual physical control of the controlled substance.’” People v Tadgerson, 346 Mich App 104, 113 (2023), quoting People v Ramsdell, 230 Mich App 386, 392 (1998). In contrast to MCL 800.281(2)—which requires a person to act knowingly—MCL 800.281(4) does not include any mens rea requirement. Tadgerson, 346 Mich App at 115, 116. The explicit inclusion of a mens rea requirement in subsection (2) paired with its omission in subsection (4) demonstrates “that the Legislature intended MCL 800.281(4) to be a strict-liability offense.” Tadgerson, 346 Mich App at 116. Further, as observed in Ramsdell, the general drug possession statute, MCL 333.7403, explicitly proscribes only “knowing or intentional” possession; the fact that the Legislature specified the required intent in this instance but did not include similar language in MCL 800.281(4) also supports the conclusion that “no ‘knowledge’ element should be ‘read into’ MCL 800.281(4).” Tadgerson, 346 Mich App at 115 (quotation marks and citation omitted).
Consideration of MCL 8.9, “which reflects the Legislature’s decision to set the criteria regarding the analysis of whether an offense includes a scienter requirement or mens rea element,” does not alter the conclusion that PPCS (MCL 800.281(4)) is a strict-liability offense. Tadgerson, 346 Mich App at 118. Specifically, “MCL 8.9(1)(b) cannot serve as a basis to incorporate a mens rea element into the offense of PPCS” because “MCL 800.281(4) does not specify a culpable mental state[.]” Tadgerson, 346 Mich App at 118. Further, because “MCL 800.281(4) plainly imposes strict liability,” it falls within MCL 8.9(2), which “indicates that culpability is not required when the relevant statutory language ‘does not specify any degree of culpability and plainly imposes strict criminal liability,’” and MCL 8.9(3) is not implicated for the same reason. Tadgerson, 346 Mich App at 118-119. Finally, where consideration of the statutory language in the general drug possession statute and MCL 800.281(2) additionally support the conclusion that PPCS is a strict-liability offense, the holding that PPCS is a strict-liability offense is not based on the “mere absence of a specified state of mind” as prohibited by MCL 8.9(9). Tadgerson, 346 Mich App at 118.
1 MCL 800.282 is discussed in Section 5.18(B)
2 This statute applies to the Department of Corrections facilities. For provisions that apply to jails, see Section 5.17.