Washington, DC (July 12, 2012) – By a 5-2 margin, in an opinion by Justice Charles T. Canady, the Florida Supreme Court’s majority agreed in the result that Florida’s strict liability felony drug law at section 893.13, as modified by section 893.101, is constitutional – but as a concurring justice pointed out, might not be constitutional as applied in a given case. This is the same law that was struck down as facially unconstitutional by a federal court in July 2011.
In that case, Shelton v. Sec’y, Dep’t of Corrections, U.S. District Judge Mary S. Scriven found that Florida stands alone among the states in its express elimination of mens rea – the common-law “guilty mind” requirement – as an element of a drug offense. In the aftermath of that decision, multiple cases were dismissed in courts around the State of Florida. The State appealed some of those dismissals in the case ruled upon today by the high court in State of Florida v. Luke Jarrod Adkins, et al., No. SC11-1878. Canady’s opinion was joined by only two other justices, with two others concurring in the result.
In today’s decision, available here, at least four out of the seven justices in the Adkins decision appear to agree that Florida’s felony drug law is facially constitutional in part because “[t]he statute does not eliminate the element of knowledge of the presence of the substance.” A concurring justice, however, says in a separate opinion the law “continues to require the State to prove that a defendant had knowledge of the presence of the controlled substance as an element of drug-related offenses[.]” Justice Barbara J. Pariente wrote, “[I]t would be difficult to uphold the Act, which codifies felony offenses with substantial penalties, against a constitutional attack when mounted by a person who possessed a controlled substance unwittingly or without knowledge of its illicit nature.”
But in the case that first led a federal court to rule that the law is facially unconstitutional – Shelton v. Secretary, Dep’t of Corrections, 802 F.Supp.2d 1289 (M.D. Fla. 2011) – it is clear that the state bore no such burden. Indeed, the court in that decision (the State of Florida’s appeal of which is still pending before the Eleventh Circuit Court of Appeals) clearly noted that “in the instant case the jury instruction was devoid of any reference to scienter, mens rea, or any level of knowledge of the nature of the substance or even the delivery [of the drug] itself.” Id. at 1307. In Shelton, the jury was only instructed that “to prove the crime of delivery of cocaine, the state must prove the following two elements beyond a reasonable doubt: that Mackle Vincent Shelton delivered a certain substance; and, that the substance was cocaine.” (Tr. At 338) While the state may have argued to the Florida Supreme Court that they bear the burden of proving an accused had knowledge of the presence of a substance under this law, and while these justices appear to have accepted that representation, that is simply not what is playing out in courts like the one that convicted Mr. Shelton.
In a dissenting opinion, Justice Perry could not “overstate [his] opposition to the majority’s opinion” as “it shatters bedrock constitutional principles and builds on a foundation of flawed ‘common sense.’” Justice James Perry’s dissent favorably cites NACDL Executive Director Norman L. Reimer’s September 2011 article The Champion for the immense concern that “The singularly extraordinary effort by the Florida Legislature to strip intent requirements from one of the most serious of felony offenses [under section 893.13] was an extreme example of the trend toward the dilution of intent requirements.” That Champion article is available here.
Nellie King, Immediate Past President of the Florida Association of Criminal Defense Lawyers, said, “This is a sad day for the rule of law in this country and Florida ought not to be proud. The majority’s suggestion that citizens who are truly innocent can simply rely on raising an affirmative defense to clear them of drug charges is laughable. This “just prove your innocence” approach shifts the burden of proof to the citizen accused.”
NACDL President Lisa M. Wayne said, “The country has been drifting away from the moral anchor of a clearly defined mens rea requirement in its criminal laws. Laws like these would run it aground. Today’s decision is disappointing and at odds with how the law is actually being applied by the state in cases like Shelton’s. We now wait for the decision of the Eleventh Circuit Court of Appeals in Shelton.”
NACDL’s joint amicus brief in Adkins is available here. The American Civil Liberties Union of Florida, the Drug Policy Alliance, the Cato Institute, the Reason Foundation, the Libertarian Law Counsel and 25 law professors also joined NACDL’s brief.
NACDL’s joint amicus brief in the Shelton appeal currently pending before the Florida Supreme Court is here. And NACDL’s joint amicus brief before the U.S. District Court for the Middle District of Florida is here.
A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.
Jack King, Director of Public Affairs & Communications, (202) 465-7628 or email@example.com.
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.