Florida drug law unconstitutional, federal judge rules

August 2nd, 2011 by Staff

www.sun-sentinel.com — A federal judge has declared Florida’s drug statute unconstitutional as it lacks the element of intent. If upheld on appeal, the decision could spring hundreds, possibly thousands, of people accused of drug crimes.

U.S. District Judge Mary S. Scriven of Orlando, in an order issued Wednesday, noted that Florida is the only state in the nation to eliminate intent as an element of its Florida Comprehensive Drug Abuse Prevention and Control Act. Legislators excised it in 2002.

Scriven cited the example of a student who hides his cocaine in a friend’s backpack without telling him. The friend, having no idea it is there, is guilty under the law even if he had no intent to possess it or didn’t know it was there.

“Atavistic and repugnant to the common law” the judge wrote of eliminating the element of intent.

According to the order, prosecutors argued that the drug law does not govern innocent conduct as the possession of a drug such as cocaine is never legal. Harsh penalties, even without criminal intent, are a risk drug dealers take.

Scriven bristled at prosecutors’ arguments essentially that the friend could raise his lack of knowledge as a defense. In that argument the state is “hoisted on its own petard,” she wrote.

The National Association of Criminal Defense Lawyers, theAmerican Civil Liberties Union and dozens of law professors joined to file briefs in the case. The news lit up defense attorney listservs around the state.

Nellie King, president of the Florida Association of Criminal Defense Lawyers, described the ruling as “courageous” and its implications as “monumental.”

“What is surprising is the government’s belief that stripping the intent requirement from the drug statutes was lawful from the start.

The legislature’s decision to deny its citizens the benefit of core, age-old constitutional principles, including the “due process” requirement inherent in the 14th Amendment, is alarming and arrogant,” King wrote. “Judge Scriven’s ruling simply renews the mandates inherent in the Constitution which our legislature opted to ignore.

“The concept of intent, or mens rea, dates back to the common law and ensures that innocent conduct is not punished,” King wrote further. “It is important to note that under Florida drug statutes today, mere proximity to controlled substances is enough to trigger arrest, prosecution and severe punishment, including life in prison. For example, a mail carrier could be charged for mere delivery of a package containing narcotics. This lack of intent requirement is the problem.”

The state is expected to appeal the ruling.


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