Thanks to a state Supreme Court ruling effectively disposing of the need for prosecutors to prove criminal intent, the Florida state government can continue imprisoning people for possessing substances they didn’t know were illegal.
Florida is one of two states afflicted with drug possession statutes that don’t require the government to prove criminal intent. The statute permits defendants to offer an affirmative defense of “unwitting possession” – which means that the defendant, not the state, has the burden of proof. The state Supreme Court, ruling the recent case of Florida v. Adkins, has rejected a challenge to that statute filed on behalf of dozens of defendants awaiting trial on drug possession charges.
“There is no constitutional right to possess contraband,” insisted Justice Charles Canady in the majority opinion. “Nor is there a protected right to be ignorant of the nature of the property in one’s possession.”
Like most rulings of this kind, Canady’s opinion begins with the totalitarian premise that the powers exercised by government are presumptively constitutional – and that it is the actions of the individual that must be justified. This inverts the American perspective on law, in which government can exercise only those powers explicitly delegated to it in the applicable constitution (state or federal).
Since the repeal of the 18th Amendment, there has been no constitutional provision authorizing the federal government to regulate the possession or consumption of mood-altering substances. The Florida state constitution is similarly devoid of such provisions. Thus there is no constitutional authority for Florida officials to prosecute people for possession of such substances.
Even if the Florida state government had the authority to criminalize drug possession, the statute dealt with in this ruling would be illegitimate because it doesn’t require the state to prove the existence of mens rea – malicious intent on the part of the accused.
In order for an act to be a crime, it must involve the deliberate violation of a clear and intelligible statute by an act that inflicts injury to another person. Individual drug consumption – although unwise – doesn’t injure anybody else; as a victimless act, it cannot be construed as a crime. The same is true of mere possession of narcotics, which – as the Florida statute acknowledges – doesn’t even necessarily involve criminal intent.
Under the Florida v. Adkins ruling, however, people can be convicted of a supposed crime on the basis of mere physical proximity to contraband they didn’t know was on their property or among their personal effects.
In his dissent, Justice James E.C. Perry points out that the standard embraced by the court would permit the prosecution and imprisonment of “a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection … a driver who rents a car in which a past passenger accidentally dropped a baggie of marijuana under the seat; a traveler who mistakenly retrieves from a luggage carousel a bag identical to her own containing Oxycodone; a helpful college student who drives a carload of a friend’s possessions to the friend’s new apartment, unaware that a stash of heroin is tucked within those possessions; [or] an ex-wife who is framed by an ex-husband who planted cocaine in her home in an effort to get the upper hand in a bitter custody dispute.”
The majority opinion blithely dismissed these possibilities – at least some of which have been validated through actual court experience – by insisting that the statute’s “affirmative defense” provision addresses the rights of the defendant. As Justice Perry observes, this violates common law principles — traceable to ancient Roman law — by forcing the defendant to overcome a presumption of guilt:
“Under the majority’s decision … the innocent will from the start be presumed guilty. The innocent will be deprived of their right to simply deny the charges and hold the State to its burden of proving them guilty beyond a reasonable doubt. The innocent will instead be forced to assert an affirmative defense, whereupon the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance….. The innocent will then have no realistic choice but to shoulder the burden of proof and present evidence to overcome that presumption…. The innocent will then hear their jury instructed on the permissive presumption that they knew of the illicit nature of the substance in question.”
The statute upheld in the Adkins ruling is involved in roughly one third of all felony charges in Palm Beach County. Peter Antonacci, State Attorney for Palm Beach County, expressed relief over the ruling. “It would have been a substantial mess if had gone the other way,” he told the Palm Beach Post, in apparent ignorance of his implicit admission that his office is responsible for imprisoning a great number of people who had done nothing to harm anybody else.
Read the Adkins ruling here.
July 17th, 2012 at 11:50 am
Will: I’d be interested to know what the other state is that has such laws on the books, so that I’ll no to avoid it like Florida. Thanks.
July 17th, 2012 at 3:07 pm
Tom — the other state is Washington. Please forgive my oversight.
February 14th, 2013 at 10:19 pm
Our retirement years are close at hand, and as former citizens of the State of Florida we are strongly tempted to the Sunshine State. But upon reading this I ask, why return to a state that turns its back to justice?
April 30th, 2013 at 5:01 pm
In drug cases you can’t plead ignorance or “good faith” because, according to Balint: “Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided.” So Congress has no problem with imprisoning the innocent for long periods of time as long as their favorite “public policy” is served.
While a normal person may NOT claim “good faith” and “ignorance of the law” in a drug case, in United States v. Leon, the term “good faith” is mentioned 55 times as an exception to the “Exclusionary Rule,” but not for real people, of course, but for cops, judges and all other officials. “Even though the affidavit was insufficient to establish probable cause,” it was all done in “good faith” the Supreme Court decided.
They always find exceptions to the Exclusionary Rule when there’s a possibility that “dangerous criminals” may be let loose on society. But the Exclusionary Rule, which was established in Weeks v. United States has so many exceptions that it may as well not exist. The Fourth Amendment has been changed to “reasonable expectation of privacy,” so if your car is illegally searched for drugs, it doesn’t matter because you don’t have the same “expectation of privacy” in your car as you do in your house.
In California v. Acevedo Scalia wrote “For some years after the (still continuing) explosion in Fourth amendment litigation that followed our announcement of the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), our jurisprudence lurched back and forth between imposing a categorical warrant requirement and looking to reasonableness alone”…”By the late 1960’s, the preference for a warrant had won out, at least rhetorically.”
“The victory was illusory. Even before today’s decision, the ‘warrant requirement’ had become so riddled with exceptions that it was basically unrecognizable. In 1985, one commentator cataloged nearly 20 such exceptions, including searches incident to arrest… automobile searches… border searches… administrative searches of regulated businesses… exigent circumstances… search[es] incident to nonarrest when there is probable cause to arrest… boat boarding for document checks… welfare searches…inventory searches…airport searches… school search[es]… searches of mobile homes… and searches of offices of government employees.”
He goes on: Our intricate body of law regarding “reasonable expectation of privacy” has been developed largely as a means of creating these exceptions, enabling a search to be denominated not a Fourth amendment “search,” and therefore not subject to the general warrant requirement… There can be no clarity in this area unless we make up our minds, and unless the principles we express comport with the actions we take.
He sounds like he’s being a smart-ass there.