“Federal judge rules Florida’s drug law unconstitutional”
Thursday, July 28, 2011
A federal judge has declared Florida’s drug statute unconstitutional on grounds that it does not require criminal intent be proven by prosecutors. If upheld on appeal, the decision has the potential to place in jeopardy hundreds, and possibly thousands, of drug convictions.
U.S. District Judge Mary S. Scriven of Orlando noted in an order issued Wednesday, that Florida is the only state to eliminate criminal intent as an element of the crime in its 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 of possession even if he had no intent to possess it or didn’t know it was there.
Elimination of the intent element is “atavistic and repugnant to the common law,” Scriven wrote.
Scriven bristled at prosecutors’ arguments that the friend could raise his lack of knowledge as a defense. The state is “hoisted on its own petard” by making that argument, she wrote.
Former Statewide Prosecutor Bill Shepherd, now in private practice, called the ruling a “huge deal” and “important issue.”
Shepherd, who serves on national legal councils, said comments streaming in from prosecutors and defense attorneys from around the country praised the ruling.
But its impact on past convictions and people now charged under the law won’t be clear until an appellate court weighs in, he said.
The National Association of Criminal Defense Lawyers, the American Civil Liberties Union and dozens of law professors filed briefs in the case. Word of the ruling 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,” she said.
“The legislature’s decision to deny its citizens the benefit of core constitutional principles, including the “due process” requirement of the 14th Amendment, is alarming and arrogant,” King said. “Judge Scriven’s ruling simply renews the mandates inherent in the Constitution which our legislature opted to ignore.”
The state is expected to appeal Scriven’s ruling.