Due process should not be tossed aside for the sake of expediency. Yet Florida state courts are doing just that by upholding drug convictions despite a recent finding by a federal judge that a key state drug law is unconstitutional.
U.S. District Judge Mary Scriven of the Middle District ruled in July that Florida's statute making possession and delivery of an illicit substance a crime is constitutionally flawed and violates due process protections. But state courts have barely noticed. Miami-Dade's 3rd District Court of Appeal joined many other state courts recently in upholding the law.
In December, the Florida Supreme Court will hear State of Florida vs. Luke Jarrod Atkins, et al., which consolidates dozens of cases of defendants charged with drug-related crimes. Atkins is an appeal of a September ruling by Manatee Circuit Judge Scott Brownell which dismissed the drug charges against the defendants, declaring the state's drug law an unconstitutional violation of due process. The justices may look for ways to avoid upsetting nearly 10 years of drug convictions, but the high court has a responsibility to enforce due process even when it's inconvenient.
A basic tenet of criminal law is that the state can only find a person guilty of a crime that he or she intended to commit. While there are some exceptions to this "mens rea" requirement, it protects people from being found criminally liable for innocent conduct.
Florida's law criminalizing possession of an illicit controlled substance didn't include this intent element. To salvage the law, the Florida Supreme Court read the "guilty knowledge" requirement into it through a jury instruction. Juries were required to find that defendants knew of the illicit nature of the substances in their possession before declaring them guilty. Otherwise people who legitimately thought they carried baking soda that turned out to be cocaine could be convicted of a serious offense.
But in 2002, in an effort to make drug prosecutions easier, state lawmakers repealed the required intent established by the Florida Supreme Court. Scriven's ruling noted that Florida is the only state in the nation that expressly eliminated mens rea as part of a felony drug offense. She called it a "draconinan and unreasonable construction" of the law, and noted that anyone unknowingly transporting illicit drugs, such as a commercial transport worker, could be found criminally liable.
The state claims the Legislature has the power to determine the elements of a crime — even writing an intent requirement out of law — and points out that defendants may claim as a defense that they didn't know the illicit nature of the substance. But asking the accused to demonstrate their innocence on an essential aspect of an offense is not how the law is supposed to work.
This mess is of the Legislature's making, but there is an easy fix. Sen. Ellyn Bogdanoff, R-Fort Lauderdale, has introduced SB 732 that would, among other reforms, effectively return an intent requirement to the law. The Legislature should pass the bill. Any disruption that results from upholding due process is the fault of the earlier decision by lawmakers to dispense with constitutional rights to make drug-related convictions easier to obtain.