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Is Cell Phone Possession in Prison “Criminal”?

Mike Scarcellaat The Blog of The Legal Times has an interesting post regarding an appeal pending before the Fourth Circuit that challenges the constitutional validity of a (dated) federal law, through which the government sought to criminalize the possession of a cell phone in prison:


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.[…]
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.”[…]
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.