Florida Supreme Court Declares Drug Law Constitutional — Mens Rea, R.I.P.

think.jpgThe Florida Supreme Court just issued a 48 page opinion finding chapter 893 (Florida’s Drug Law) constitutional. State v. Atkins, SC11-1878 (Fla. 2012) That’s bad for anyone who respects freedom and liberty.

What just happened? Well, a little history should help ease the pain.

This story began with the Shelton case, a Federal opinion that found our drug laws unconstitutional because the Florida legislature eliminated the “guilty mind” (mens rea) requirement of drug crimes. Federal opinions have no influence on State courts (unless, of course, the Federal court happens to be the United States Supreme Court) but, a judge in Miami justly found the opinion in Shelton persuasive and dismissed 46 Florida drug cases, ranging from possession of cocaine to sale and delivery. All gone. This is the appeal of those thrown out cases, and they made it all the way up to our Florida Supreme Court.

Here’s the best summary of the issues involved, found in Judge Pariente’s concurring opinion:

“forty-eight states, either by statute or judicial decision, require that knowledge of a controlled substance–mens rea (“guilty mind”)–be an element of a criminal narcotics offense….Being one among a distinct minority of states to eliminate an element traditionally included in criminal offenses does not, of course, render Florida’s drug law unconstitutional. After all, this Court’s task is not to decide whether the Legislature has made a wise choice–or even one in keeping with the overwhelming majority of jurisdictions–when defining the elements of drug related offenses. Rather, we must determine whether the Legislature deprived defendants of due process of law under the United States and Florida Constitutions by omitting knowledge of the illicit nature of a controlled substance as an element of the offense.” P. 25
The majority opinion had no problem with upholding chapter 893, noting that “the legislature has broad discretion to omit a mens rea element from a criminal offense”. P. 10. Also quoting themselves from the 1983 case of State v. Gray, 435 So. 2d 816 (Fla. 1983) “the legislature may punish conduct without regard to the mental attitude of the offender, so that the general intent of the accused to do the act is deemed to give rise to a presumption of intent to achieve the criminal result.”

But the court also acknowledged that the omission of a mens rea element has, from time to time, been held unconstitutional, as it violates due process. There are many examples of this, one example given by the court is Lambert v. California 355 U.S. 225 (1957), where our United States Supreme Court struck down a law requiring felons to register if in Los Angeles for more than five days, as such persons probably have “no actual knowledge of [their] duty to register.” Id at 227. The line drawn here is that the crime in Lambert was totally passive, legal conduct (simply being present in L.A.). Thus, laws that criminalize passive acts are far more suspect than those seeking to prohibit “affirmative acts”.

In part, our Florida Supreme Court believes that there should be no “concern that entirely innocent conduct will be punished with a criminal sanction under chapter 893” because defendants are entitled “to raise the affirmative defense of an absence of knowledge of the illicit nature of the controlled substance.” Id at 19.

Judge Pariente’s concurring opinion justifies the majority’s decision by noting that “significantly, the State still bears the burden of proving a defendant’s knowledge of the presence in order to establish a defendant’s actual or constructive possession of the controlled substance.” Id at 26. But, Judge Pariente disagrees with the majority opinion’s broad acceptance of a legislature’s power to eliminate mens rea, correctly finding that “there are constitutional limitations on the Legislature’s ability to create crimes that dispense with mens rea and in effect criminalize actions that could be characterized as innocent conduct where such crimes carry substantial penalties.” Id. (FYI, it has been previously held that, where a crime does not hold substantial penalties, no mens rea is required)

We are left to ponder which statutes will be next on the mens rea chopping block. Has our Florida Supreme Court just opened the floodgates?