In the world of prisoner contraband, there's the usual stuff—drugs, weapons and cash. In 2010, Congress added mobile phones to the list of items considered "prohibited objects" in the hands of inmates.
There was a catch-all provision in the law, before the changes, that banned any object that threatens the "order, discipline and security" of federal prison. Sound a little vague? That's the argument a lawyer representing a former inmate—charged with possession of a mobile phone—is making in a federal appeals court.
The ex-inmate, Johnny Beason, was caught with a mobile phone before congressional changes, via the Cell Phone Contraband Act, went into effect in late 2010. Beason pleaded guilty in 2011 and is now challenging the constitutionality of the version of the law under which he was convicted. The U.S. Court of Appeals for the Fourth Circuit is scheduled to hear the dispute on February 1.
Here's the issue: Did Beason have "fair and sufficient notice" that his possession of a mobile phone opened him up to criminal liability? Beason's attorneys, Brian Kornbrath and Kristen Leddy, who work for federal public defender offices in West Virginia, contend the old law is unconstitutional for its vagueness. A cell phone, the attorneys said, "has a legal purpose and productive uses, which can carry over to the prison environment."
"The vast majority of cell phone possession cases in federal prisons have been resolved through administrative sanctions within prisons, not in federal courts," Beason's lawyers said in a brief in the Fourth Circuit. "Beason was not given sufficient notice that his possession of a cell phone would subject him to federal criminal penalties."
Beason's attorney said there's a single federal appellate court case that addresses the conviction of an inmate who was caught with a cell phone. The U.S. Court of Appeals for the Third Circuit, in 2008, upheld the validity of the law.
The "dearth of case law suggests that federal inmates have very rarely been prosecuted for possessing a cellular telephone in prison; and it would not have been common knowledge to inmates or members of the general public possessed of ordinary intelligence, that possessing a cellular telephone in prison, to talk to one's friends and family, would result in criminal sanctions," Beason's lawyers said in court papers.
Beason was in federal custody in Morgantown, W.V., for a violation of supervised release following his conviction in D.C. Superior Court on a gun-related charge, according to court papers. Beason's attorneys said he acquired a mobile phone to keep in touch, while locked up, with family and friends. Beason's lawyers called phone fees for prisoners "onerous."
An officer at the Morgantown prison spotted Beason using a phone inside his cell. Beason, according to the government, tried to conceal the phone, "but when the correctional officer requested that he turn over the cell phone, the defendant complied."
In the trial court, Beason unsuccessfully challenged the charge. A federal trial judge, Irene Keeley of the Northern District of West Virginia, sentenced Beason to two years of probation for the offense.
Prosecutors said that although the federal statute at the time of Beason's offense didn't specifically identify a mobile phone as a prohibited object, "a reasonable person would know that a cell phone could be used for a multitude of illegal and improper purposes" that jeopardize prison order.
Beason, government lawyers said, was aware he could receive an administrative rebuke for getting caught with a mobile phone.
"Cell phone use by inmates poses significant risks to prison security," an assistant U.S. attorney, Brandon Flower, said in court papers filed on January 8. "Inmates can use cell phones to make unmonitored calls, can arrange the introduction of contraband, can continue criminal activity such as fraud schemes and can arrange for assaults within a prison and on the street."
Beason, according to his lawyers, is the first inmate from the Morgantown prison to be prosecuted for possession of a mobile phone. Several other cases, Beason's lawyers said, hinge on the outcome of this case.