Massachusetts G.L. c. 268, § 28: Delivering Drugs or Articles to Prisoners in Correctional Institutions or Jails; Possession

Massachusetts General Laws Chapter 268, Section 28 makes it a crime to deliver drugs or other articles to persons in jail or in a house of correction. The statute states:

Whoever gives or delivers to a prisoner in any correctional institution, or in any jail or house of correction, any drug or article whatever, or has in his possession within the precincts of any prison herein named with intent to give or deliver to any prisoner such drug or article without the permission of the superintendent or keeper, shall be punished by imprisonment in the state prison for not more than five years, or in a jail or house of correction for not more than two years, or by a fine of not more than one thousand dollars.

In order to convict a defendant of delivering drugs or articles to prisoners, the government must prove the following elements beyond a reasonable doubt:

1. The defendant either (a) delivered drugs or any article to a prisoner, or (b) had drugs or any article in his possession while at the prison, with the intent to deliver those drugs or that article to a prisoner. The main act must be either actual delivery of the drugs or object to the prisoner, or physical possession of the drugs or object with the intent to deliver them to the prisoner.
2. The prisoner must be an inmate in a jail or house of correction. Massachusetts case law suggests that work-release facilities are considered an extension of these institutions, and would likely qualify under this element of the statute.
3. The defendant did not have the permission of the superintendent or keeper of the institution to possess the drugs or object while at the facility. Often, this involves actively hiding the drugs or object from detection when entering and passing through security at the jail or house of corrections.

The charge of delivering drugs to prisoners will usually accompany charges for possession of illegal substances. However, Massachusetts courts have held that possession is a lesser-included offense of the delivery of drugs to prisoners offense, and a defendant cannot be punished for both crimes.

Because the statute punishes the delivery, or intent to deliver, drugs or any article to a prisoner, a person who delivers even innocent objects to the prisoner may be subject to charges. For example, if a person visits a friend in prison, and during the visit, exchanges sneakers with the prisoner, that person can face charges for this crime. However, the more likely scenario occurs when a person visits a prisoner and secretly delivers, or attempts to deliver, marijuana, cocaine, or pills to the prisoner.

G.L. c. 268, § 31 similarly criminalizes the receipt of any item from a prisoner in a penal institution. In the example above where the visitor exchanged sneakers with the prisoner, the visitor could be charged under both G.L. c. 268, § 28 and G.L. c. 268, § 31. Additionally, charges of possession, distribution, and possession with intent to distribute controlled substances also relate to charges under G.L. c. 268, § 31. However, delivery to a prisoner is the greater offense and, by its nature, includes the offenses of possession, distribution, and intent to distribute. So, even if a person is convicted of both delivery and one of these lesser offenses, the person can be punished only for the greater offense.

Experienced criminal defense lawyers know that proving the intent element of any charge can often be challenging for prosecutors. If the defendant is charged with possession of drugs or an article on the precinct property with intent to deliver it to a prisoner, and the defendant did not know that the drugs or object was on his person, this would be a defense to the “intent to deliver” element of the statute. It might also be a defense that the defendant was given permission by an authorized person at the facility to have the object with him while on the property. The circumstances under which the object or drugs are discovered may also provide the basis for a defense. For example, if the defendant was subject to an unlawful search while on the premises, and the object or drugs are found during that unlawful search, the defense lawyer will file a motion to suppress evidence on the grounds that the search that led to the discovery was illegal. In drug cases, the defense attorney may also file motions to reduce the charges to simple possession.

Delivery of drugs or articles to prisoners is a felony punishable by up to five years imprisonment in state prison, or by up to two years in jail or a house of correction, or by a fine of up to $1,000.

If you or someone you know has been charged with delivery of drugs or any object to a prisoner or inmate, contact the Law Offices of Stephen Neyman, P.C. Attorney Neyman has nearly thirty years of experience in defending clients against drug possession and distribution charges. Contact us today for a free and confidential consultation at 617-263-6800 or online.