A recent case before the Michigan Supreme Court is destined to become one of those “silly criminal” filler stories that are sometimes tucked away in newspaper classified ad sections.
But the case produced a serious difference of opinion between two Michigan Supreme Court justices, Chief Justice Marilyn Kelly and Justice Robert Young.
First, the facts: Nathaniel Ward was stopped by the cops, who took his cash after a police dog indicated that the money contained cocaine and heroin residue.
Over the course of the next few days, Ward sold drugs three times to an undercover officer and a confidential informant.
Later, the police called Ward and said they wanted to give back the money they had seized during the traffic stop. When Ward showed up at a State Police post to claim his cash, he was arrested for the drug sales.
Here’s the silly part: when Ward was searched after the police took him to the Grand Traverse County jail, his underwear was loaded with drugs – 20 packets of heroin and 47 grams of crack cocaine, to be exact.
Here’s the serious part: when Ward was sentenced, he was assessed 25 points under OV 19 for threatening the security of a penal institution.
The Michigan Court of Appeals denied Ward’s delayed application to appeal.
Last week, on a 6-1 vote, the Michigan Supreme Court affirmed the Court of Appeals in People v. Ward.
Young took Kelly, the lone dissenter, to task for her vote to grant leave to appeal:
Chief Justice Kelly’s dissent reveals an unusual perspective of criminal law and criminality in general. What Chief Justice Kelly vilifies as a “ruse” and “subterfuge” is a legitimate law enforcement tactic to safely apprehend a known drug dealer. Further, because offense variable (OV) 19, MCL 777.49, plainly does not include an intent element, the caselaw from other states that Chief Justice Kelly cites is irrelevant. Accordingly, there is no basis in the law for rescoring OV 19, as Chief Justice Kelly urges.
Speaking of the way the police lured Ward to the State Police post, Young noted:
I agree that this was a “ruse,” but it offends no principle of law to use a criminal’s stupidity against him.
Chief Justice Kelly chooses to chastise the police officers for their “subterfuge” rather than the defendant, who knowingly carried 47 grams of crack cocaine and 20 packets of heroin into a police station and then attempted to smuggle the same 47 grams of crack cocaine and packets of heroin into the Grand Traverse County Jail. Chief Justice Kelly asserts that defendant “could hardly be said to have intended to engage in conduct that ‘threatened the security of a penal institution.'” It is hard to believe that anyone could sincerely dispute that the presence of illicit drugs “threaten[s] the security of a penal institution.”
Young suggested that Ward could have told the police about the drugs in his underwear but instead chose to smuggle the drugs into the county jail.
Chief Justice Kelly suggests that defendant may be excused from the consequences of that choice “because he wished not to be charged for possession with intent to deliver prohibited substances in addition to his other crimes.” A criminal’s interest in avoiding punishment for his crimes does not, has never, and, hopefully, will never excuse criminal behavior.
In response, Kelly argued that the threat, if any, to the penal institution existed because of police trickery:
Clearly, defendant should not have been in possession of illegal drugs and should not have taken them to the police station. But his purpose in going there was not to deal drugs. He could hardly be said to have intended to engage in conduct that “threatened the security of a penal institution.” If his behavior can be said to have been a threat, regardless of defendant’s intent, it must be conceded that the threat existed only because of a police subterfuge. I believe this crucial fact could make defendant’s conduct an insufficient basis for the scoring of OV 19 here.
Justice Young observes that defendant could have avoided having his sentence increased by telling the officers that he carried prohibited substances on his person when he was arrested at the station. He points out that it was defendant’s choice to bring the drugs into the county jail. However, defendant chose not to reveal the drugs, presumably because he wished not to be charged for possession with intent to deliver prohibited substances in addition to his other crimes. It seems unlikely that he chose to conceal the drugs because he intended to “threaten the security of a penal institution.”
Kelly argued that threatening the security of a penal institution may require a finding of actual intent to do so before points can be assessed under OV 19:
Caselaw from our sister states supports the conclusion that intent is necessary for a defendant to be liable for conduct of this sort. Courts in some other jurisdictions have come to contrary conclusions. … Clearly, the issue is of jurisprudential significance and this Court should not summarily dismiss it. …
I would have no difficulty with the scoring of OV 19 in this case if the OV provided extra points for trying to avoid having drugs being detected during a booking, or, as Justice Young suggests, simply for “stupidity.” But it does neither. I think the assessment of 25 points here may have lengthened defendant’s sentence for conduct not covered by OV 19.
In a footnote, Kelly concluded:
It seems I should be entitled to this and similar conclusions without being accused of holding “an unusual perspective of criminal law and criminality in general,” especially given the divergent outcomes on the issue in other states.