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A Times Editorial

Due process returns to Florida's drug law

It took nearly a decade, but a federal court judge has finally put due process back into Florida drug laws by declaring a key statute unconstitutional. The results could throw the state's criminal justice system into mass confusion as the legality of past drug-related convictions is questioned. Lawmakers must fix the law as soon as possible.

One of the fundamental precepts of criminal law is that for a person to be guilty of a crime he or she must have intended to commit it. This intent requirement, or mens rea, ensures that innocent conduct isn't treated as criminal.

While Florida's drug law didn't explicitly include this guilty knowledge requirement, the Florida Supreme Court in a series of cases read the requirement into the statute as a way to salvage its constitutionality. The court required juries, to determine guilt, to find that defendants knew of the illicit nature of the substances in their possession.

But in response, and explicitly citing the Supreme Court's decisions, state lawmakers repealed this intent requirement in 2002. They did so in contravention of the due process right of criminal defendants to be presumed innocent until the state proves them guilty of every element of a crime. Nonetheless, this is where the law has stood since.

Until Wednesday, that is, when U.S. District Judge Mary Scriven, of the Middle District in Orlando, declared Florida's drug statute unconstitutional based on its lack of an intent requirement. Scriven noted that Florida is the only state in the nation that expressly eliminated mens rea as part of a felony drug offense and called it a "draconian and unreasonable construction" of the law.

"Florida's statute is not a 'drug dealers beware' statute but a 'citizens beware statute,' " Scriven wrote, noting that a host of innocent behaviors may be rendered criminal under Florida's law. These could include, for instance, a student who unknowingly has drugs in his or her book bag after another classmate hastily puts them there to avoid detection; or a commercial transport worker who delivers a box without knowing there are illicit drugs inside.

In the meantime, Pinellas-Pasco State Attorney Bernie McCabe and Pinellas-Pasco Public Defender Bob Dillinger are adjusting to the new ruling even though it is not binding precedent. Both suggest returning to the jury instruction established by the Florida Supreme Court as a way forward. But the potential chaos lies with cases adjudicated between 2002 and now. Defendants convicted under an unconstitutional statute would have the right to contest their conviction, putting a huge number of convictions at risk.

The court is setting things right after the Legislature acted irresponsibly. Whatever disruptions ensue should be laid at the feet of lawmakers who ran roughshod over the Constitution in an effort to appear tough on crime.

Due process returns to Florida's drug law 07/29/11 [Last modified: Friday, July 29, 2011 6:25pm]
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