Well, I’ve finished reading the Florida Supreme Court opinion in State v. Adkins, No. Sc11-1878, and my initial opinion has not changed: disappointed, but not surprised. I suspect that a lot of other criminal defense and appellate lawyers in South Florida are feeling the same way too.
The rationale for the majority’s holding is not exactly convincing. In support of its holding that the Florida Comprehensive Drug Abuse Prevention and Control Act (“the Act”) is constitutional, the Court deferred to the Legislature’s broad authority the define the elements of a crime. Slip op., pgs. 7-8. Next, the Court cited several decisions from the United States Supreme Court, including United States v. Balint, 258 U.S. 250 (1922), Staples v. United States, 511 U.S. 600 (1994), and United States v. Freed, 401 U.S. 601 (1971) for the proposition that the legislature has the authority to define the elements of a crime for the public welfare. Slip op., pgs. 8-16. In support of its conclusion that the omission of a mens rea element did not violate due process, the Court reasoned that (1) the State is still required to prove that a defendant was engaged in the affirmative act of selling, manufacturing, possessing, or delivering a controlled substance; (2) an innocent person can rely on the affirmative defense as contained in the Act; (3) the Act and section 893.13 are rationally related to the Legislature’s goal of controlling drugs with a high potential for abuse; (4) prohibiting the sale, manufacture, delivery, or possession of controlled substances does not impinge on any constitutionally protected rights; (5) common sense and experience support a conclusion that possession without awareness of the illicit nature of the substance is highly unusual; and, (6) the Legislature’s decision to treat lack of knowledge of the illicit nature of the substance as an affirmative defense does not violate due process. Slip op., pgs. 16-19. The Court also analogized the affirmative defense to the New York case of People v. Patterson, 347 N.E.2d 898 (N.Y. 1976). Slip. op., pgs. 19-22.
After reading the majority opinion, I wondered: why did the Court not cite more persuasive, or even more contemporary authority in support of its conclusion that the substitution of the affirmative defense for the mens rea element renders the Act constitutional? Then, reading the first lines of Justice Pariente’s concurring opinion, I realized the answer: there is nothing more contemporary for the Court to cite! As noted by Pariente, Although 48 other States have chosen to require the prosecution to prove mens rea as an element of a drug offense, the Florida Legislature opted to eliminate the mens rea element. Slip op., pg. 23, (Pariente , J., concurring). Pariente does an adequate job of pointing out some flaws in the majority opinion, and her concurring opinion reads more like a dissent than a concurrence. But the fact that she concurs in the result is surprising, given number previous dissenting opinions she has authored in criminal cases. The reasons for her concurrence is also surprising: (1) the Act still requires the State to prove that a defendant had knowledge of the presence of a controlled substance; and, (2) the Act allows a defendant to raise the affirmative defense of lack of knowledge. Slip op., pg. 24 (Pariente, J., concurring).
After reading Justice Perry’s dissent, I am convinced that Justice Pariente and the majority both failed to adequately recognize two key concepts. First, the existence of the mens rea element is the cornerstone of American criminal jurisprudence. Slip op., pgs. 25, 32-34. (Perry, J., dissenting). Second, the elimination of the mens rea element, the substitution of the affirmative defense, and the Florida jury instructions which permit the jury to presume that a defendant had knowledge of the illicit nature of the substance based on mere possession, all combine together to strip people charged with drug offenses of their constitutional presumption of innocence.
What comes next? Well, for Adkins and the other co-defendants, they go back to square one and get back on the trial docket. But other people who already stand convicted of drug offenses might wish to consider filing petitions for writ of habeas corpus in state, then federal courts. Case in point: Shelton v. Sec’y, Dept. of Corr., 803 F. Supp. 2d 1289 (M.D. Fla. 2011).