Criminal Defense
Since 1993
Since 1993
Why Florida’s Drug Law Is Unconstitutional
By now, you’ve heard that a Federal court in Orlando has declared Florida’s drug law unconstitutional (Shelton v. Secretary, Dept. of Corrections, 23 Fla. L. Weekly Fed. D11a (M.D. Fla. July 27, 2011)). The court’s opinion is over 30 pages long, so let me try to explain the situation in a few less words. Here it goes…
In 2002, the Florida legislature decided to amend our drug laws in order to make it easier to convict citizens of drug offenses. It did this by removing an element that requires the prosecutor to prove a defendant “knew” of the illicit or illegal nature of the drug (this element is known as “mens rea” or the “scienter requirement). By removing that knowledge element, Florida became the only state in the country in which a felony drug offense can be proven without the need to prove knowledge! Basically, this means that a Florida citizen can be convicted of Possession of Marijuana or Possession of Cocaine without ever knowing that the substance was illegal.
Without “knowledge” as an element of a drug crime, the statute violates a citizen’s right to due process and is thus unconstitutional (see how I just skipped about 25 pages of analysis?). Another prong of the analysis reasons that, if a crime does not require a “mens rea” element, it is known as a “strict liability” crime. Legislatures are entitled to create crimes lacking a knowledge element creating criminal strict liability, but these crimes must be misdemeanors punishable only up to one year in jail. Thus, it is possible that future courts could declare the statute constitutional, but require that all felony drug charges be punishable as misdemeanors (even trafficking cases…).
It’s important to clarify here that the Shelton decision is from a Federal court. Our Florida courts have already rejected the above arguments, and this rejection can be found in Johnson v. State, 37 So.3d 975 (Fla. 1st DCA 2010).