Tag: mens rea

More on the Constitution’s Lack of a Drug-War Exception

Challenges to Florida’s unconstitutional drug laws continue to gain momentum. Following a successful federal district court challenge to the constitutionality of state statutes lacking a mens rea requirement (mental culpability, rather than, for example, incidental possession), people convicted under them have come forward en masse to ask Florida courts to reexamine their convictions.

As described in the background to a previous brief in the case of Florida Dept. of Corrections v. Shelton, the district court held that these sorts of laws offend the constitutional guarantee of due process. Florida’s Supreme Court has now consolidated over 40 appeals resulting from that federal court decision (which itself is now on appeal). Cato has once again joined the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, ACLU, Drug Policy Alliance, Calvert Institute for Policy Research, Libertarian Law Council, and 38 law professors on a brief supporting the rights of persons convicted under the “strict liability” statutes.

We urge the Florida Supreme Court to follow the federal district court’s lead and strike down laws prohibiting the sale, possession, or delivery of illicit substances without requiring mental culpability. That court now has the opportunity to reverse these unwarranted convictions and purge a nationally singular stain on civil liberties.

The name of the case is Florida v. Adkins.

Thanks to legal associate Paul Jossey for his assistance with this brief and blogpost.

There’s No Drug War Exception to the Constitution

Florida is so zealous in pursuing the war on drugs that its laws classify the possession, sale, and delivery of controlled substances as crimes not requiring the state to prove that the defendant knew he had possessed, sold, or delivered those substances.

In Florida Dept. of Corrections v. Shelton, state prosecutors convicted Mackie Shelton of transporting cocaine under one of these “strict liability” statutes, the trial judge having instructed the jury that the state only needed to prove that Shelton delivered a substance and that the substance was cocaine. Shelton successfully challenged the constitutionality of that state law in federal court, where the district judge overturned the conviction and noted that “Florida stands alone in its express elimination of mens rea as an element of a drug offense.”

Florida appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit. Cato has joined the National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, ACLU, Drug Policy Alliance, Calvert Institute for Policy Research, and 38 law professors on an amicus brief supporting Shelton’s position.

The Supreme Court has recognized only limited exceptions to the general rule that criminal culpability requires mens rea (a guilty mind). These “strict liability” crimes fall under the rubric of “public welfare offenses” and are typically what most people would not consider “serious,” such as traffic violations and selling alcohol to minors. Policymakers justify dispensing with mens rea requirements in such contexts by citing the need to deter businesses from imposing costs on society at large, or the burden that having to prove mens rea in these sorts of cases would overwhelm courts, or that the penalties are relatively small and carry little social stigma.

Florida’s legislature, however, went well beyond the normal boundaries of public welfare offenses in imposing strict liability for drug crimes that can carry significant prison terms — and thus violated the due process of law and traditional notions of fundamental fairness. As an alternative argument purporting to save its drug laws, Florida points to the availability of affirmative defenses, that these defenses (e.g., “I didn’t know it was cocaine”) to a presumption of guilty intent take the statute out of the (constitutionally dubious) strict liability category.

But a state may not simply presume the mens rea element of a crime: In Patterson v. New York (1977), for example, the Supreme Court held that prosecutors cannot reallocate the burden of proof by forcing a defendant to prove an affirmative defense. In requiring defendants to prove that they are “blameless” in these sorts of drug crimes, Florida’s statutes fail constitutional muster.

We urge the Eleventh Circuit to affirm the district court’s ruling that the offending state law unconstitutional.

Without Intent

One of the major problems with the growing body of federal crimes – over 4,500 and counting, expanding at the rate of 500 each decade – is that many lack the traditional requirement that the defendant has acted with a guilty mind, or mens rea. Highlighting the overcriminalization of nearly everything is necessary to educate the citizenry and put pressure on politicians not to pass overbroad and ill-defined criminal offenses. At some point, however, Congress must act to address the existing flawed statutes and put procedural barriers between bad ideas and the federal criminal code.

Enter the Heritage Foundation and the National Association of Criminal Defense Lawyers with their groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.

The report studies the legislation proposed or passed by the 109th Congress (2005-2006) and finds that a majority lacked an adequate mens rea requirement. The report closes with a strong case for several fundamental changes in the way that Congress creates criminal laws:

  • Enact default rules of interpretation ensuring that guilty-mind requirements are adequate to protect against unjust conviction.
  • Codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly.
  • Require adequate judiciary committee oversight of every bill proposing criminal offenses or penalties.
  • Provide detailed written justification for and analysis of all new federal criminalization.
  • Redouble efforts to draft every federal criminal offense clearly and precisely.

This report is indicative of a broad effort developing across the political spectrum to fix a federal criminal code that has become disconnected from traditional notions of punishing blameworthy conduct. Northwestern Law’s Searle Center on Law, Regulation and Economic Growth held its 2009 Judicial Symposium on Criminalization of Corporate Conduct.

The Heritage Foundation is hosting an event highlighting the findings of Without Intent on Monday, May 24 that can also be viewed online.