Vaping Behind Bars

North Carolina inmates are not allowed to have tobacco products, and other people are not allowed to give tobacco products to them. This session, the legislature changed the law—twice—to address the use of vapor products (like e-cigarettes) in our prisons and jails. Today’s post discusses those changes, beginning with some background on existing law. My colleague Jill Moore, expert in public health law, previously wrote more broadly about e-cigarettes here and here, and I credit her with flagging some of the issues discussed below.

Let’s start with existing law. For the state prisons, G.S. 148-23.1 prohibits any person from using or possessing tobacco products on the premises of a State correctional facility, except for authorized religious purposes. The restriction extends to inmates, employees, and visitors, although employees and visitors may keep (but not use) tobacco products in a locked motor vehicle in the parking area. G.S. 148-23.1(b1). Inmates and employees who violate the prohibition are subject to administrative sanctions, while visitors who violate may lose visitation privileges. There is no criminal penalty for a violation. By contrast, under G.S. 14-258.1, any person who gives or sells tobacco products to a prison inmate, or to a non-inmate for delivery to an inmate, is guilty of a Class 1 misdemeanor. G.S. 14-258.1 defines “tobacco product” by reference to G.S. 148-23.1, which previously covered cigars, cigarettes, snuff, loose tobacco, and similar goods used for smoking, chewing, or dipping.

The rules for jails are similar, but not identical. The prohibition on giving or selling tobacco products under G.S. 14-258.1 applies to jails just as it does to prisons. As for possession, G.S. 14-258.1(e) makes it a Class 1 misdemeanor for any jail inmate to possess tobacco products—again defined by reference to the definition in G.S. 148-23.1—other than for authorized religious purposes. The jail prohibition on tobacco possession is different from its prison analogue in three ways: (1) it is a crime; (2) it outlaws only possession, not use; and (3) it does not apply to jail employees and visitors.

That covers the existing law. Let’s review the changes. First, in S.L. 2014-3, a tax bill, the General Assembly expanded the definition of prohibited “tobacco products” in G.S. 148-23.1 to cover “vapor products.” The bill defined vapor products to include nonlighted products that heat liquid nicotine solutions in a vapor cartridge, such as electronic cigarettes, cigars, and pipes. G.S. 148-23.1(d)(3). That revised definition, effective July 1, 2014, applies across the board to the use/possession prohibition for prisons in G.S. 148-23.1(b) and (b1); the possession prohibition for jails in G.S. 14-258.1(e); and the giving/selling prohibition for jails and prisons in G.S. 14-258.1(c). Even though the revised definition itself now covers vapor products, the bill also added clauses to the prohibitions set out in G.S. 14-258.1 to make absolutely clear that they cover all tobacco products, “including vapor products.” The old belt and suspenders approach.

After the bill was signed into law, some sheriffs and e-cigarette vendors expressed concern that the change would prohibit them from providing or selling vapor products to inmates—something that has become a nationwide trend. So they pursued another change to the law. S.L. 2014-115 amended G.S. 14-258.1 again to add a new subsection setting out an exception to the prohibition on giving or selling tobacco products to jail inmates. By virtue of the exception, jails may “give or sell vapor products or FDA-approved tobacco cessation products . . . to inmates while in the custody of the [jail.]” Earlier versions of the bill would have allowed vapor products to be given or sold to inmates only as part of an authorized smoking cessation program (see, for example, Section 23.(a) of the fourth edition of the bill). But given health professionals’ doubts as to whether vapor products should ever be a part of a cessation program, the final version of the law simply allowed jails to give or sell vapor products or cessation products.

The bill also removed the “including vapor products” clause that had been added to “tobacco products” in the possession prohibition for jails in G.S. 14-258.1(e), probably intending to pave the way for jail inmates to possess the vapor products given or sold to them by jail personnel. But recall that those “including vapor products” clauses were merely the suspenders of the aforementioned belt and suspenders approach; the belt was the revised definition of “tobacco products” in G.S. 148-23.1(d)(2), which was amended by the first session law to include vapor products. That amendment was unchanged by the second session law, and so continues to apply—arguably preventing inmates from possessing even properly obtained vapor products. At a minimum, I suspect the legislature intends for it to be a crime for a jail inmate to possess contraband vapor products (those obtained through sources other than the jail itself). Perhaps the scope of any exception to the possession prohibition could be clarified in the future. In the meantime, I doubt as a practical matter that a jail would charge (criminally, I mean) an inmate for possessing the e-cig it sold to him. And if it did, the inmate might have some sort of entrapment by estoppel defense.

So where does that leave us? Let me try to summarize:

• As of July 1, 2014, prison inmates, employees and visitors may not use or possess vapor products on the premises of a state prison facility, except for authorized religious purposes. Those who do are subject to administrative sanctions.
• As of December 1, 2014, it is a Class 1 misdemeanor for any person to give or sell a vapor product to a jail or prison inmate, or to a non-inmate for delivery to an inmate, except that the jail may give or sell vapor products to jails inmates. There is no similar exception for state prison inmates.
• As of December 1, 2014, it appears to be a Class 1 misdemeanor for a jail inmate to possess a vapor product, other than for authorized religious purposes, although that prohibition might not apply to vapor products provided by the jail itself.

Whew. That’s complicated. I don’t smoke or use vapor products, but if I did, I think I might go have one now.