Go Directly to Jail
The only major opinion out of the Supreme Court last week was the unanimous reversal of the 8th District's decision in State v. Cargile. Cargile had been arrested, and before taking him to jail, the officer asked if he had any contraband. He denied it, and during the booking process, well, what do you know: he had some marijuana in his pants cuffs.
Cargile was convicted under RC 2921.36, which prohibits conveying drugs into a detention facility. In reversing, the 8th District focused on RC 2901.21(A), which requires that guilt must be based on either a voluntary act or an omission. Cargile's conveyance to jail was anything but voluntary, and thus he hadn't committed the actus reus necessary for conviction.
The Supreme Court found a problem with that analysis. The crime is knowingly conveying drugs into the facility, and Cargile did have a choice there: he could give the officer the drugs, or he could tell the officer he didn't have any, and thus commit the crime. Going to jail was not a voluntary act, but deciding to take the drugs in with him was, in the court's view.
While that's arguably correct, it sidesteps the 5th Amendment issues. The court noted, again correctly, that the right against self-incrimination does not include the right to lie. Here, Cargile did so: rather than remaining silent, he affirmatively denied that he possessed any drugs. But there are some problems here.
First, assume that Cargile had acknowledged his possession of drugs -- would the failure of the officer to advise him of his Miranda rights have rendered that admission unusable in court? It would certainly seem so; there's no question it's a custodial interrogation.
Second, assume the officer did advise Cargile of his rights. He's now been told that anything he says can be used against him in court. If he admits he has drugs, he can be prosecuted for that; if he denies it, he can be prosecuted for conveying drugs into a detention facility. His only safe choice is to refuse to make a statement at all. (Presumably, invoking one's Miranda rights would not be the "voluntary act" making him culpable of the crime, although, based on Cargile, that might not be a very safe presumption.) That's a pretty fine line to walk.
Finally, assume the office didn't ask Cargile if he had any drugs. Is Cargile under an affirmative duty to disclose it? It's hard to see how he would be, but that changes the nature of the crime: it isn't really "knowingly conveying drugs into a detention facility," but "knowingly conveying drugs into a detention facility if a police officer asks you if you have any and you lie about it."
Most interesting is the court's rejection of Cargile's claim that the statute was intended "to prevent visitors, employees, or other nonprisoners from bringing drugs or other contraband into a detention facility." One of the problems with analysis of legislative intent in Ohio is that there's nothing comparable to the Congressional Record: comments in committee hearings and floor debates are lost to history. Still, it seems safe to say that Cargile's right in this respect: I would bet that none of the legislators who enacted this statute back in 1978 hypothesized that it would be applied in this manner. The best evidence for that is that it wasn't: I can't find any evidence of prosecutions under the statute for what Cargile did before 2003.
This sort of thing happens with some degree of frequency. Tampering with evidence under RC 2921.12 has never been amended since it was enacted as part of the major criminal law package in 1974. Then about five or six years ago, some bright-eyed prosecutor had a case where a defendant, caught in the act of smoking crack, threw the pipe down on the ground, breaking it, when the officers approached. Rather than get a lousy conviction for 5th degree felony drug possession, the prosecutor figured he'd get a conviction for a 3rd degree felony of tampering with evidence. And now those prosecutions are fairly routine.
Same thing here. Cargile, whose possession of marijuana would have normally been a minor misdemeanor offense, punishable by a maximum $100 fine, is instead convicted of a third degree felony and sentenced to two years in prison. If you subscribe to the view that criminal justice is a game in which the goal is to see how many different crimes a defendant can be charged with, Cargile is a good result. If you believe that criminal law should involve a comprehensive and rational determination of how offenses to society should be punished, it is not.
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