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Florida supreme court upholds controversial drug law

Florida’s Supreme Court ruled Thursday citizens can now be prosecuted for illegal drug possession, even if they didn’t know they had them. In most other states, intent or knowledge of wrongdoing is necessary to be tried for a criminal action. But that was cut out of the criminal section of Florida’s drug law back in 2002. Supports of the law said the ruling was a major victory for the war on drugs.

“It allows if someone says they didn’t know about it they can assert an affirmative defense of lack of knowledge. But they are presumed to have that knowledge if they’re walking around with drugs on their person or in their possession,” said General Council for the Florida Prosecuting Attorney’s Association Buddy Jacobs.

Last September, a Manatee County judge threw out forty-two cases ruling the revised law was a breach of due process right. It is unclear if the ruling will be appealed to the United States Supreme Court. In separate but similar case, a federal judge ruled the drug law was unconstitutional.


The National Association of Criminal Defense Lawyers released the following statement in reaction to the Florida Supreme Court's 5-2 decision:

Fla. Supreme Court Upholds State’s Controversial Drug Law

But decision is at odds with state’s arguments in federal court case

Washington, DC (July 12, 2012) – By a 5-2 margin, in an opinion by Justice Charles T. Canady, the Florida Supreme Court’s majority agreed in the result that Florida’s strict liability felony drug law at section 893.13, as modified by section 893.101, is constitutional – but as a concurring justice pointed out, might not be unconstitutional as applied in a given case. This is the same law that was struck down as facially unconstitutional by a federal court in July 2011. 

In that case, Shelton v. Sec’y, Dep’t of Corrections­­, U.S. District Judge Mary S. Scriven found that Florida stands alone among the states in its express elimination of mens rea – the common-law “guilty mind” requirement – as an element of a drug offense. In the aftermath of that decision, multiple cases were dismissed in courts around the State of Florida. The State appealed some of those dismissals in the case ruled upon today by the high court in State of Florida v. Luke Jarrod Adkins, et al., No. SC11-1878. Canady’s opinion was joined by only two other justices, with two others concurring in the result.

In today’s decision, available here, at least four out of the seven justices in the Adkins decision appear to agree that Florida’s felony drug law is facially constitutional in part because “[t]he statute does not eliminate the element of knowledge of the presence of the substance.”  A concurring justice, however, says in a separate opinion the law “continues to require the State to prove that a defendant had knowledge of thepresence of the controlled substance as an element of drug-related offenses[.]” Justice Barbara J. Pariente wrote, “[I]t would be difficult to uphold the Act, which codifies felony offenses with substantial penalties, against a constitutional attack when mounted by a person who possessed a controlled substance unwittingly or without knowledge of its illicit nature.”

But in the case that first led a federal court to rule that the law is facially unconstitutional – Shelton v. Secretary, Dep’t of Corrections­­, 802 F.Supp.2d 1289 (M.D. Fla. 2011) – it is clear that the state bore no such burden. Indeed, the court in that decision (the State of Florida’s appeal of which is still pending before the Eleventh Circuit Court of Appeals) clearly noted that “in the instant case the jury instruction was devoid of any reference to scienter, mens rea, or any level of knowledge of the nature of the substance or even the delivery [of the drug] itself.” Id. at 1307. In Shelton, the jury was only instructed that “to prove the crime of delivery of cocaine, the state must prove the following two elements beyond a reasonable doubt: that Mackle Vincent Shelton delivered a certain substance; and, that the substance was cocaine.” (Tr. At 338) While the state may have argued to the Florida Supreme Court that they bear the burden of proving an accused had knowledge of the presence of a substance under this law, and while these justices appear to have accepted that representation, that is simply not what is playing out in courts like the one that convicted Mr. Shelton.

In a dissenting opinion, Justice Perry could not “overstate [his] opposition to the majority’s opinion” as “it shatters bedrock constitutional principles and builds on a foundation of flawed ‘common sense.’” Justice James Perry’s dissent favorably cites NACDL Executive Director Norman L. Reimer’s September 2011 article The Champion for the immense concern that “The singularly extraordinary effort by the Florida Legislature to strip intent requirements from one of the most serious of felony offenses [under section 893.13] was an extreme example of the trend toward the dilution of intent requirements.” That Champion article is available here.

Nellie King, Immediate Past President of the Florida Association of Criminal Defense Lawyers, said, “This is a sad day for the rule of law in this country and Florida ought not to be proud. The majority’s suggestion that citizens who are truly innocent can simply rely on raising an affirmative defense to clear them of drug charges is laughable.  This “just prove your innocence” approach shifts the burden of proof to the citizen accused.”

NACDL President Lisa M. Wayne said, “The country has been drifting away from the moral anchor of a clearly defined mens rea requirement in its criminal laws. Laws like these would run it aground. Today’s decision is disappointing and at odds with how the law is actually being applied by the state in cases like Shelton’s. We now wait for the decision of the Eleventh Circuit Court of Appeals in Shelton.”

NACDL’s joint amicus brief in Adkins is available here. The American Civil Liberties Union of Florida, the Drug Policy Alliance, the Cato Institute, the Reason Foundation, the Libertarian Law Counsel and 25 law professors also joined NACDL’s brief.

NACDL’s joint amicus brief in the Shelton appeal currently pending before the Florida Supreme Court is here. And NACDL’s joint amicus brief before the U.S. District Court for the Middle District of Florida is here.