en banc, five to four decision
How later courts described this case
- en banc, five to four decision
Written by the judges who cited it.
The opinion
MONTEMURO, Judge,
dissenting:
I am in total agreement with the Dissent’s conclusion that intent is not necessary for violation of § 5123, and write separately only to add my own reasoning to that of Judge Brosky.
As the majority points out, the express purpose of the statute is to prevent the introduction of prohibited substances into areas where those to whom such thing's are forbidden can acquire them. It is then concluded that the legislatively disapproved conduct is the intentional introduction of such substances for the purpose of providing them to prisoners or inmates. However, I believe that because the objective is prevention, whether importation has occurred through deliberation or inadvertence is irrelevant; under the majority’s logic, almost any behavior is allowable as long as the thoughts are pure. This seems contrary to the thrust of the statute.
Further, it is difficult to understand, since statutes are not to be given absurd interpretation, how substances can be said to “benefit” those for whom they have been made illegal. The majority states, with accuracy, that the legisla *464 ture does not appear to make criminal the possession by a visitor of his own prescription drugs or medicines. I believe a practical distinction can be made by prison officials between the possession of these legitimate substances, and the possession of those which, like the marijuana at issue here, are illegal per se, or have no reasonable purpose in a prison setting. Like the Dissent, I would reverse and remand.