District Court Finds Florida Drug Law That Lacks Intent Requirement “Facially Unconstitutional Because it Results in a Strict Liability Offense With a Harsh Penalty, Stigma, and Overbroad Regulation of Otherwise Innocuous Conduct”

WSJ Law Blog links to a habeas opinion from the Middle District of Florida in which a District Court Judge found the Florida Drug Abuse Prevention and Control law–which criminalizes the delivery of a controlled substance– facially unconstitutional because it lacks an intent requirement.

“Actus non facit reum nisi mens sit rea” – – except in Florida.2

Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.”

Here is how a brief digest of some of the key quotes from the section finding the statute facially unconstitutional:

Petitioner’s facial challenge to Florida’s drug statute is properly premised on allegations that the State’s affirmative elimination of mens rea and scienter from this felony offense violates due process.  . . .

Petitioner’s facial challenge to Florida’s drug statute is properly premised on allegations that the State’s affirmative elimination of mens rea and scienter from this felony offense violates due process.  . . .

To be sure, the law recognizes the authority of government to fashion laws that punish without proof of intent, but not without severe constraints and constitutional safeguards.  . . .

From this body of law it is clear that while “strict liability offenses are not unknown to the criminal law and do not invariably offend constitutional requirements,” their use is very limited and they are accorded a “generally disfavored status.”  . . .

Thus, under Staples and its progeny, the tripartite analysis for evaluating a strict liability offense under the strictures of the Constitution involves consideration of: (1) the penalty imposed; (2) the stigma associated with conviction; and (3) the type of conduct purportedly regulated.

With this framework, the Court finds that the law “violates due process because the penalties are too severe” (a 2nd degree felony, punishable by up to 30 years), the law “violates due process because it creates substantial social stigma,” (the law can “‘gravely besmirch’ a person’s reputation”), and  the law “violates due process because it regulates inherently innocent conduct ” (“Florida’s statute does not require even the minimal showing that the Defendant knew he was delivering any illicit substance as an element of the offense charged”). Based on these factors, the Court found the law unconstitutional.

Under this analytical framework, FLA. STAT. § 893.13 cannot survive constitutional scrutiny when considered in relation to the conduct it regulates—the delivery of any substance.

The court in footnote 7 lists the name of 38 law profs who joined an Amicus filed by the National Association of Criminal Defense Lawyers. Here are all the names (usually briefs are cited, if at all, without listing the signatories).

7 A full explication of the elimination of mens rea as atavistic and repugnant to the common law is eloquently and thoroughly set forth in the memorandum filed by Amici Curiae, National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, American Civil Liberties Union of Florida, Drug Policy Alliance, Calvert Institute for Policy Research, and thirty-eight Professors of Law: (1) Bridgette Baldwin (W. New England Coll. Sch. of Law); (2) Ricardo J. Bascuas (Univ. of Miami Sch. of Law); (3) Caroline Bettinger-López (Univ. of Miami Sch. of Law); (4) Guyora Binder (Univ. at Buffalo Law Sch.); (5) Jennifer Blasser (Benjamin N. Cardozo Sch. of Law); (6) Vincent M. Bonventre Albany Law Sch.); (7) Tamar R. Birckhead, (Univ. of N.C. Sch. of Law); (8) Darryl K. Brown (Univ. of Va. Sch. of Law); (9) Paul Butler (The Geo. Wash. Univ. Law School); (10) Michael Cahill (Brooklyn Law Sch.); (11) Matthew H. Charity (W. New England Coll. Sch. of Law); (12) Lucian E. Dervan (S. Ill. Univ. Sch. of Law); (13) William V. Dunlap (Quinnipiac Univ. Sch. of Law); (14) Sally Frank (Drake Univ. Law Sch.); (15) Monroe H. Freedman (Hofstra Univ. Sch. of Law); (16) Bennett L. Gershman (Pace Law Sch.); (17) Andrew Horwitz (Roger Williams Univ. Sch. of Law) (18) Babe Howell (CUNY Sch. of Law); (19) Renée Hutchins (Univ. of Md. Sch. of Law); (20) John D. King (Wash. & Lee Univ. Sch. of Law); (21) Jeffrey L. Kirchmeier (CUNY Sch. of Law); (22) Richard Daniel Klein (Touro Coll. Jacob D. Fuchsberg Law Ctr.) (23) Kelly S. Knepper-Stephens (The Geo. Wash. Univ. Law School); (24) Alex Kreit (Thomas Jefferson Sch. of Law); (25) Donna Hae Kyun Lee (CUNY Sch. of Law); (26) Mary A. Lynch, (Albany Law Sch.); (27) Dan Markel (Fla. State Univ. Coll. of Law) (28) Ellen S. Podgor (Stetson Univ. Coll. of Law); (29) Martha Rayner (Fordham Univ. Sch. of Law); (30) Ira P. Robbins (Am. Univ. Wash. Coll. of Law); (31) Jenny M. Roberts (Am. Univ. Wash. Coll. of Law); (32) Ronald Rotunda (Chapman Univ. Sch. of Law); (33) Stephen A. Saltzburg (The Geo. Wash. Univ. Law Sch.); (34) William A. Schroeder (S. Ill. Univ. Sch. of Law); (35) Michael L. Seigel (Univ. of Fla. Levin Coll. of Law); (36) Laurie Shanks (Albany Law  Sch.); (37) Rodney Uphoff (Univ. of Mo. Sch. of Law); (38) Ellen C. Yaroshefsky (Benjamin N. Cardozo Sch. of Law).

Congrats to all the Profs!

I’ll be curious to see how the Defense Bar applies this opinion to a number of other strict liability offenses.  I think the Federal Government also has a number of strict liability crimes for which a guilty mind is not required–many of which can have quite severe penalties.

Cross-Posted at JoshBlackman.com.

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