Last week a federal judge in Orlando ruled that Florida's Comprehensive Drug Abuse Prevention & Control Act violates the constitutional right to due process because it allows conviction without proof of mens rea, the "guilty mind" that is normally considered a crucial element of a criminal offense. The decision (PDF) could have a sweeping impact, casting doubt on convictions under the law since 2002, when the statute was enacted in its current form. "It has one of the largest potential effects on criminal law in the past decade," a local defense attorney told the St. Petersburg Times. "We're talking hundreds of thousands of drug cases."

In 2002, responding to Florida Supreme Court rulings that said people can be convicted of possessing controlled substances only if they do so knowingly, the state legislature amended the drug law to explicitly remove that requirement. Under the new law, a prosecutor no longer had to prove a defendant knew the substance he possessed was illegal; instead lack of knowledge could be claimed as an affirmative defense, with the defendant required to overcome "a permissive presumption that the possessor knew of the illicit nature of the substance." In effect, the amendment changed the presumption of innocence into a presumption of guilt. Think of it as the drug exception to the Due Process Clause. In last week's decision, which she issued in response to a habeas corpus petition by a man convicted of delivering cocaine, U.S. District Judge Mary Scriven put a damper on Florida legislators' eagerness to throw out a fundamental principle of justice in the name of preventing people from getting high:

Florida stands alone in its express elimination of mens rea as an element of a drug offense. Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the "unknowing" possession of a controlled substance….Under Florida's statute, a person is guilty of a drug offense if he delivers a controlled substance without regard to whether he does so purposefully, knowingly, recklessly, or negligently. Thus, in the absence of a mens rea requirement, delivery of cocaine is a strict liability crime under Florida law.

Scriven noted that "a strict liability offense has only been held constitutional if: (1) the penalty imposed is slight; (2) a conviction does not result in substantial stigma; and (3) the statute regulates inherently dangerous or deleterious conduct." She said none of those requirements is satisfied in the case of delivering cocaine, where the penalty and stigma are severe and the underlying conduct—transporting something—is entirely innocent but for knowledge that the item is contraband. Scriven offered a hypothetical to illustrate the implications of applying strict liability to drug offenses:

Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection. The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statute: delivery (actual, constructive, or attempted) and the illicit nature of the substance. The victim would be faced with the Hobson's choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of the two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposes that he does in fact have guilty knowledge…. The Court declines to grant the State broad, sweeping authority to impose such an outcome in direct contravention of well-established principles of American criminal jurisprudence—that no individual should be subjected to condemnation and prolonged deprivation of liberty unless he acts with criminal intent—and binding Supreme Court precedent governing the constitutional analysis of strict liability offenses. Because [Florida's drug law] imposes harsh penalties, gravely besmirches an individual's reputation, and regulates and punishes otherwise innocuous conduct without proof of knowledge or other criminal intent, the Court finds it violates the due process clause and that the statute is unconstitutional on its face.

The challenge that led to Scriven's decision (PDF) was supported by the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the Drug Policy Alliance. The NACDL has more here.

[via the Drug War Chronicle]