THE 2013 WECHSLER MOOT COURT COMPETITION
UNIVERSITY AT BUFFALO LAW SCHOOL | MARCH 2013
In the Supreme Court of the United States
OCTOBER TERM 2012
NO. 12 – 1234
________________________________________________
DOE, ET. AL,
Petitioners
V.
FLORIDA,
Respondent.
________________________________________________
ON WRIT OF CERTIORARI TO THE
UNITED STATED COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________________________
BRIEF FOR THE RESPONDENT
TEAM 9
Team #9
QUESTIONS PRESENTED
1. Whether the Florida Legislature may constitutionally eliminate mens rea as an
element of certain drug-related offenses?
Respondent says yes.
2. Whether the availability of an affirmative defense through which an accused may
establish a lack of knowledge of the illicit nature of the substance satisfies any
constitutional concerns raised by the state’s elimination of a mens rea element with
respect to such offenses.
Respondent says yes.
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TABLE OF CONTENTS
QUESTIONS PRESENTED............................................................................................................2
TABLE OF CONTENTS….............................................................................................................3
TABLE OF AUTHORITIES...........................................................................................................5
STATEMENT OF THE CASE.......................................................................................................8
SUMMARY OF THE ARGUMENT............................................................................................13
ARGUMENT
I.
The Amendment of a Criminal Statute Constitutes a Valid Exercise of the State’s
Power to Make Reasonable Policy Determinations…...........................................14
A. Amendment Section 893.101 is a Legitimate Use of the State’s Powers as
Imagined By the Framers, Provided for in the Constitution and Promoted in
This Court……................................................................................................14
B. The State Promotes National and Local Interests in its Reasonable Policy
Determination As Embodied by Amendment § 893.101.................................17
II.
Elimination of Mens Rea is Not in and of Itself a Violation of Due
Process.................................................................................................................. 18
A. Historically, This Court has been Unwilling to Rule Criminal Statutes
Unconstitutional in Light of States’ Broad Police Power................................18
B. Amendment Section § 893.101 Creates a General Intent Crime, Voiding
Notice Concerns…….……………...………………………………………..20
III.
The Availability of an Affirmative Defense Eliminates Remaining Objections to
Amendment Section § 893.101……...…………………………………………...21
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A. Lack of Knowledge Defense Proves Legislature Did Not Intend to Create a
Strict Liability Crime..…...…………………………………………………..22
B. The Government Bears the Burden of Proof for the Elements of the Offense
and Bears the Burden of Proof to Overcome an Affirmative Defense............23
CONCLUSION.............................................................................................................................26
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TABLE OF AUTHORITIES
Constitutional Provisions:
U.S. Const. Art. I § 9, cl. 3……………………………………………………………………….16
U.S. Const. amend. X…………………………………………………………………………….14
United States Supreme Court Cases:
Ewing v. California, 538 U.S. 11 (2003).……………………………………………………15, 18
Gregory v. Ashcroft, 501 U.S. 452 (1991).………………………………………………………17
In re Winship, 397 U.S. 358 (1970)..…………………………………………………………….23
Lambert v. People of the State of California, 355 U.S. 225 (1957)………………...……19, 20, 21
Martin v. Ohio, 480 U.S. 228 (1987)..……………………………………………………….23, 24
McFarland v. American Sugar Rfg. Co., 241 U.S. 79 (1916).…………………………………..16
Montana v. Egelhoff, 518 U.S. 37 (1996).…………………………………………………...15, 18
Morissette v. United States., 342 U.S. 246 (1952)………………………………………………...9
Patterson v. New York, 432 U.S. 197 (1977)…………...……………………14, 15, 16, 19, 23, 24
Speiser v. Randall, 357 U.S. 513 (1958)…………………………………………………………19
Staples v. United States, 511 U.S. 600 (1994)……………………………………….……9, 22, 23
Tot v. United States, 319 U.S. 463 (1943)………………………………………………………16
United States v. Balint, 258 U.S. 250 (1992)….…………………………...……….…………9, 19
United States v. Darby, 312 U.S. 100 (1941)….……………………………..……….…………14
Federal Cases:
Shelton v. Sec’y, Dept. of Corr., 802 F. Supp. 2d 1289 (M.D. Fla. 2011)….....................11, 12, 22
Shelton v. Sec’y, Dept. of Corr., 691 F.3d 1348 (11th Cir. 2012)………………………...…12, 19
United States v. Averi, 715 F. Supp. 1508 (M.D. Ala. 1989) ………………………...…………19
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United States v. Bunton, 2011 WL 5080307 N.8:10-CR-327-T-30EAJ (M.D. Fla. Oct. 26,
2011)..............................................................................................................................................11
United States v. Cordoba-Hincapie, 825 F. Supp 485 (E.D. N.Y. 1993)…………………………9
State Court Cases:
Chicone v. State, 684 So. 2d 736 (Fla. 1996)…………………………………………………9, 10
Flagg v. State, 74 So. 3d 138 (Fla. Dist. Ct. App. 2011)……………………………………22, 24
Maestas v. State, 76 So. 3d 991 (Fla. Dist. Ct. App. 2011)…...…………………………18, 20, 22
Miller v. State, 35 So. 3d 162 (Fla. Dist. Ct. App. 2010)…….…...…………………………11, 12
Scott v. Cohen, 568 So. 2d 49, 51 (Fla. 1990)…….…...………………………………………...23
Scott v. State, 808 So. 2d 166 (Fla. 2002)…….…...……………………………………………..10
State v. Adkins, 96 So. 3d 412 (Fla. 2012)….…...……………………………………………….11
Statutes:
Fla. Stat. Ann. § 893.03(1) (West 2012)…………………………………………………………..8
Fla. Stat. Ann. § 893.03(2) (West 2012)…………………………………………………………..8
Fla. Stat. Ann. § 893.03(3) (West 2012).………………………………………………………….8
Fla. Stat. Ann. § 893.101 (West 2002)…..10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25
Fla. Stat. Ann. § 893.101(1) (West 2002).………………………………………………………10
Fla. Stat. Ann. § 893.101(2) (West 2002)……………………………………………………10, 21
Fla. Stat. Ann. § 893.101(3) (West 2002)..………………………………………………………10
Fla. Stat. Ann. § 893.13 (West 2012)……………………………………..8, 10, 11, 14, 20, 21, 22
Fla. Stat. Ann. § 893.13(1)(a) (West 2012).………………………………………………………8
Fla. Stat. Ann. § 893.13(2) (West 2012)……………..……………………………………………8
Fla. Stat. Ann. § 893.13(3) (West 2012)………………..…………………………………………8
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Secondary Sources:
16 Fla. Jur. 2d Criminal Law § 129 (2013)……………………………………………………...21
21 Am. Jur. 2d Criminal Law § 132 (2013)……………………………………………………...10
21 Am. Jur. 2d Criminal Law § 135 (2013)……………………………………………………...10
Fla. Std. Jury Instr. (Crim.) 25.7. (2007)………………………………………………………...24
Jiaquan Xu et al., Deaths: Final Data for 2007, Centers for Disease Control and Prevention, 58
National Vital Statistics Reports 19 (2007), available at
http://www.cdc.gov/nchs/data/nvsr/nvsr58/nvsr58_19.pdf………………..............................17
Rachel A. Lyons, Florida’s Disregard of Due Process Rights for Nearly A Decade: Treating
Drug Possession as a Strict Liability Crime, 24 St. Thomas L. Rev. 350 (2012)……………20
The Federalist No. 47, at 292-93 (James Madison) (Clinton Rossiter ed., 1961)………….........15
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STATEMENT OF THE CASE
The Florida Comprehensive Drug Abuse Prevention and Control Act (“DAPCA”)
prohibits “any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture,
or deliver, a controlled substance.” Fla. Stat. Ann. § 893.13(1)(a) (West 2012). The DAPCA
distinguishes between controlled substances in order to determine the severity of the criminal
offense.
Substances listed in Schedule I have “a high potential for abuse and [have] no currently
accepted medical use in treatment in the United States and [their] use under medical supervision
[do] not meet accepted safety standards.” Fla. Stat. Ann. § 893.03(1) (West 2012). An offender
in possession of such substances “commits a felony of the second degree.” Fla. Stat. Ann. §
893.13(1) (West 2012).
Substances in Schedule II have “a high potential for abuse,” but are distinguishable from
Schedule 1 substances because they are used in “currently accepted but severely restricted
medical use in treatment in the United States, and abuse of the substance may lead to severe
psychological or physical dependence.” Fla. Stat. Ann. § 893.03(2) (West 2012). An offender in
possession of such substances “commits a felony of the third degree.” Fla. Stat. Ann. § 893.13(2)
(West 2012).
Finally, substances in Schedule III have a “potential for abuse less than the substances
contained in Schedules I and II and [have] a currently accepted medical use in treatment in the
United States, and abuse of the substance may lead to moderate or low physical dependence or
high psychological dependence.” Fla. Stat. Ann. § 893.03(3) (West 2012). An offender in
possession of such substances “commits a misdemeanor of the first degree.” Fla. Stat. Ann. §
893.13(3) (West 2012).
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Before 2002, the DAPCA was silent as to a mens rea requirement. The term “mens rea”
means “‘a guilty mind; a guilty or wrongful purpose; a criminal intent’” and is also “shorthand
for a broad network of concepts encompassing much of the relationship between the individual
and the criminal law.” U.S. v. Cordoba-Hincapie, 825 F.Supp. 485, 489 (E.D.N.Y. 1993).
Although mens rea is “deeply rooted in our legal tradition,” Judge Weinstein observed
that “like most ancient doctrines, however, it has grown far more sophisticated and nuanced than
it once was. It can no longer simply be invoked. Its application must be carefully explained and
its many distinctions must be considered. Not only has the law developed an appreciation of
gradations in mental states, but it now also openly recognizes limited exceptions to a rule once
characterized as admitting no compromise.” Id. at 496.
The Florida Supreme Court considered whether DAPCA was one such exception to the
rule in in Chicone v. State where it contended with the conspicuous absence of mens rea in the
statute. The Chicone Court observed “the state of the law on this issue is unclear” and pointed to
number of conflicting decisions from the district courts as to whether the knowledge is an
element of the offenses listed in the DAPCA. Chicone v. State, 684 So.2d 736, 738 (Fla. 1996).
Drawing upon the holdings of this Court, the Florida Supreme Court concluded that “the
legislature is vested with the authority to define the elements of a crime, determining whether
scienter is an essential element of a statutory crime is a question of legislative intent.” Id. at 741
(citing Morissette v. United States, 342 U.S. 246 (1952)), Staples v. United States, 511 U.S. 600
(1994), and United States v. Balint, 258 U.S. 250 (1992)
. The Chicone Court concluded “it was the intent of the legislature to prohibit the
knowing possession of illicit items” and accordingly held there was an implicit mens rea
requirement for the possession of the substances listed in the statute. Id. at 744.
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The Florida Supreme Court later expanded this understanding of legislative intent. The
Scott Court held in addition to knowing possession, the statute also required “knowledge of the
illicit nature of the contraband is an element of the crime of possession of a controlled
substance.” Scott v. State, 808 So. 2d 166, 172 (2002).
Shortly after the Scott decision, the Florida Legislature clarified its intent by enacting an
amendment to DAPCA. Fla. Stat. Ann. § 893.101 (West 2002). Amendment Section 893.101
codified that the holdings in Chicone and Scott were “contrary to legislative intent.” Fla. Stat.
Ann. § 893.101(1) (West 2002).
Rather, the Legislature posited that “knowledge of the illicit nature of a controlled
substance is not an element of any offense under this chapter.” Fla. Stat. Ann. § 893.101(2)
(West 2002). Thus, the Scott Court’s additional mens rea requirement was struck from the
elements of the offenses listed in DAPCA.
Instead, Amendment Section 893.101 permits the accused to raise “lack of knowledge of
the illicit nature of a controlled substance” as an “affirmative defense to the offenses of this
chapter.” Fla. Stat. Ann. § 893.101(2) (West 2002). The accused may raise an affirmative
defense of lack of knowledge to rebut the “permissive presumption that the possessor knew of
the illicit nature of the substance.” Fla. Stat. Ann. § 893.101(3) (West 2002).
The elimination of all knowledge requirement would essentially reduce the offenses
listed in Section § 893.13 to strict liability crimes, which “depend on no mental element” and are
“generally disfavored.” 21 Am. Jur. 2d Criminal Law § 132; 21 Am. Jur. 2d Criminal Law § 135.
However, Amendment Section 893.101 does not eliminate all mens rea for the offenses listed in
DAPCA. State v. Adkins, 96 So. 3d. 412, 416 (Fla. 2012); United States v. Bunton, 2011 WL
5080307 N.8:10-CR-327-T-30EAJ at *1 (M.D. Fla. Oct. 26, 2011)
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. Rather, the aggregate effect of the amendment is to create a general intent crime. A
general intent crime “is one in which an act was done voluntarily and intentionally, and not
because of mistake or accident.” ALR 21 Am. Jur. 2d Criminal Law § 118. Essentially, the
government must prove the “defendant intended deliberate, conscious, or purposeful action, as
opposed to causing a prohibited result through accident, mistake, carelessness, or absentmindedness.” Id.
As the Florida Supreme Court later confirmed in State v. Adkins, Amendment Section
893.101 does not “eliminate the element of knowledge of the presence of the substance.” Adkins
at 416. The Adkins Court observed that “since the enactment of section 893.101, each of the
district courts of appeal has ruled that the statute does not violate the requirements of due
process.” Id.
With the exception of one case, the federal courts in Florida have upheld this
interpretation of Amendment Section 893.101. Adkins at 416; See Shelton v. Sec’y, Dept. of
Corr., 802 F. Supp. 2d 1289 (M.D. Fla. 2011). As the Middle District observed, “While the
statute has no element requiring guilty knowledge of the illicit nature of the substance, the State
still must prove that a defendant charged with a drug offense enumerated in Fla. Stat. § 893.13
had knowledge of his possession of the substance.” Bunton at *1.
This interpretation reflects actual practice in Florida as jury instructions include a finding
of knowledge of the possession. In Miller v. State, the court considered the following jury
instructions: “to prove the crime of possessing cocaine, the State must prove three elements
beyond a reasonable doubt. First, they have to prove that Mr. Miller possessed a certain
substance. Second, that the substance was cocaine. And third, that Mr. Miller had knowledge of
the presence of the substance.” Miller v. State, 35 So. 3d 162, 163 (Fla. Dist. Ct. App. 2010).
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The law appeared well settled on this issue until a judge in the Middle District of Florida
challenged the accepted interpretation of Amendment Section 893.101. In Shelton v. Sec’y of
the Dept. of Corr., the court granted a habeas petition having found “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.” Shelton v.
Sec’y, Dept. of Corr., 802 F. Supp. 2d 1289, 1297 (M.D. Fla. 2011). As a result of this perceived
violation of due process, the court held the Amendment Section 893.101 was facially
unconstitutional.
The Eleventh Circuit Court of Appeals struck down this holding. The court found that the
Amendment Section 893.101 was “explicit in its partial elimination of mens rea.” Shelton v.
Sec’y, Dept. of Corr., 691 F. 3d 1348, 1355 (11th Cir. 2012). The Eleventh Circuit found it
reasonable that five Florida Supreme Court justices “agreed no U.S. Supreme Court precedent
renders the Act as amended unconstitutional” and accordingly, deferred to the state court
decision and reversed the lower court’s grant of habeas relief. Id. at 1354.
In the instant matter, the constitutionality of Amendment Section 893.101 is challenged
again. Doe v. Florida considers the constitutionality of convictions for violations of the entire
range of offenses listed in Florida Statute Section 893.13. These misdemeanor and felony
convictions were affirmed, as keeping with the settled state of the law, by the highest state courts
of Florida.
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SUMMARY OF THE ARGUMENT
The Florida legislature did not violate due process by eliminating mens rea as an element
of certain drug-related offenses in Section 893.101. Amending a criminal statute to clarify intent
is a valid exercise of a state’s power. Moreover, this Court has repeatedly held that elimination of
mens rea as an element of an offense is not a violation of due process if the state’s interest in
doing so does not violate societal notions of fundamental fairness and provides proper notice to
individuals. Assuming that all mens rea was in fact eliminated by Section 893.101, the balancing
between the state’s police power and the fact that elimination of mens rea is not in and of itself
impermissible satisfies fairness concerns.
The notice requirement is met when the conduct that is being regulated is one that would
be expected to be regulated. In the instant case, even assuming that the legislature eliminated all
mens rea from the drug-related offenses, allowing for an affirmative defense that an individual
charged under one of the offenses did not know about the illicit nature of the substance
ameliorates any due process concerns.
The availability of the affirmative defense ensures that the offenses in questions are not
strict liability crimes, and strict liability crimes are what generally trigger due process concerns.
Additionally, the affirmative defense does not ask a defendant to prove an element of the
underlying offense, thus there is not an inappropriate shift of proof to defendants. As such, the
availability of the affirmative defense created by the statute installs the necessary procedural
safeguard to foreclose any due process concerns.
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ARGUMENT
I. The Amendment of a Criminal Statute Eliminating Mens Rea Constitutes a Valid
Exercise of the State’s Power to Make Reasonable Policy Determinations
Amendment Section 893.101 State Legislature’s clarification of its intent and the
elements of Section 893.13 offenses is: (1) a constitutionally permissible exercise of state power
that does not exceed any articulated limitations on this power; and (2) a rational policy choice on
the part of the State to promote national and local interests. As this Court observed,
“Traditionally, due process has required that only the most basic procedural safeguards be
observed; more subtle balancing of society’s interests against those of the accused have been left
to the legislative branch.” Patterson v. New York, 432 U.S. 197, 201-02 (1977).
A. Amendment § 893.101 is a Legitimate Use of the State’s Powers as Imagined By
the Framers, Provided for in the Constitution and Promoted in This Court
The State appropriately exercised its powers, as vested by the Constitution, when the
Legislature enacted Amendment Section 893.101. The Tenth Amendment provides that each
state retain “its sovereignty, freedom, and independence, and every power, jurisdiction, and right,
which is not by this Confederation expressly delegated to the United States, in Congress
assembled.” U.S. Const. amend. X. The Supreme Court famously held this “amendment states
but a truism that all is retained which has not been surrendered.” United States v. Darby, 312
U.S. 100, 124 (1941). The framers intended to vest the states with expansive authority to “allay
fears that the new national government might seek to exercise powers not granted, and that the
states might not be able to exercise fully their reserved powers.” Id.
These reserved powers were contemplated as extending “to all the objects which, in the
ordinary course of affairs, concern the lives, liberties and properties of the people and the
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internal order, improvement, and prosperity of the State.” The Federalist No. 47, at 292-93
(James Madison) (Clinton Rossiter ed., 1961). Criminal statutes concern the “lives, liberties and
properties of the people” because they impose sentences and fines. Id. Legislative attempts to
modify these statutes, with the goal of bolstering “the internal order, improvement and prosperity
of the State,” are an appropriate use of the powers imagined by the framers. Id.
Under the Constitution, the states properly create, modify, and implement criminal
statutes. Patterson v. New York, 432 U.S. 197, 201-02 (1977). The Patterson Court found
“preventing and dealing with crime is much more the business of the States than it is of the
Federal Government, and ... we should not lightly construe the Constitution so as to intrude upon
the administration of justice by the individual States.” Id.
This Court has generally upheld the state’s power to modify responses to criminal
activity by legislative initiative. Ewing v. California, 538 U.S. 11, 12 (2003). In Ewing, the Court
considered California’s three strikes law, the second state to pass a legislative initiative of this
kind in the nation; Washington was the first state to pass such a law. Id. at 15. The Ewing Court
found “State legislatures enacting three strikes laws made a deliberate policy choice… Though
these laws are relatively new, this Court has a longstanding tradition of deferring to state
legislatures in making and implementing such important policy decisions.” Id. at 12. See also
Montana v. Egelhoff, 518 US 37, 44 (1996): “Preventing and dealing with crime is much more
the business of the States than it is of the Federal Government, and ... we should not lightly
construe the Constitution so as to intrude upon the administration of justice by the individual
States.”
However, a state cannot run afoul of other constitutional provisions when exercising its
powers. In Patterson, this Court upheld the state legislature’s modification of a criminal statute to
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permit defendants to bear the burden of proof of an affirmative defense. Patterson v. New York,
432 U.S. 197, 210 (1977). While finding in that instance there was no violation of Due Process,
the Court recognized that “there are obviously constitutional limits” to the broad powers enjoyed
by the states. Id.
First, states are prohibited from creating bill of attainders. The Patterson Court held “’it is
not within the province of a legislature to declare an individual guilty or presumptively guilty of
a crime.’” Patterson at 210 (citing McFarland v. American Sugar Rfg. Co., 241 U.S. 79, 86
(1916)). Legislative declarations of guilt, or bills of attainder, are barred by explicit language in
the Constitution. U.S. Const. Art. I § 9, cl. 3.
Secondly, the government must bear the burden of proof for all materials elements of the
offense. The Patterson Court held the state legislature cannot “validly command that the finding
of an indictment, or mere proof of the identity of the accused, should create a presumption of the
existence of all the facts essential to guilt.” Patterson at 210 (citing Tot v. United States, 319 U.S.
463, 469 (1943)).
In the instant matter, Florida acts by the powers granted by the Constitution to modify the
certain criminal offenses as provided for in Amendment Section 893.101. First, this modification
does not infringe upon any stated constitutional protections or provisions. Secondly, this
modification is compatible with the kind of powers the framers imagined were reserved by the
states. Finally, Amendment Section 893.101 respects the limitations on the states’ powers as
articulated by this Court: it neither declares an individual guilty of a crime nor discharges the
government’s burden of proof.
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B. The State Promotes National and Local Interests in its Reasonable Policy
Determination As Embodied by Amendment 893.101
When state legislatures appropriately exercise their powers to self-determine, the nation
benefits from their diverse policy initiatives. Gregory v. Ashcroft 501 U.S. 452, 458 (1991). In
Gregory, this Court observed that the “federalist structure of joint sovereigns preserves to the
people numerous advantages. […] it increases opportunity for citizen involvement in democratic
processes; it allows for more innovation and experimentation in government; and it makes
government more responsive by putting the States in competition for a mobile citizenry.” Id.
Furthermore, the states are in the best position to know and respond to the “diverse needs”
of their populace. Id. An additional advantage of the federalist system, as observed by the
Gregory Court, is that it “assures a decentralized government that will be more sensitive to the
diverse needs of a heterogeneous society.” Id.
The State promotes national policy to eradicate the illegal use and sale of narcotics by
Amendment Section 893.101, and additionally acts in its own self-interest by responding to the
presence of illegal drugs and drug use contained within its borders. As a direct consequent of
drug use, 2,936 persons died in Florida in 2007.1 This is compared to the number of persons in
Florida who died from motor vehicle accidents (3,329) and firearms (2,272) in the same year.2
Florida drug-induced deaths (16.1 per 100,000 population) exceeded the national rate (12.7 per
100,000 population).3
1
Centers for Disease Control and Prevention - National Vital Statistics Reports Volume 58,
Number 19 for 2007. http://www.cdc.gov/nchs/data/nvsr/nvsr58/nvsr58_19.pdf
2
Id.
3
Id.
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For the aforementioned reasons, Amendment Section 893.101 is a constitutionally
permissible, innovative policy determination that promotes the order and wellbeing of the State
of Florida’s populace.
II. Elimination of Mens Rea is Not in and of Itself a Violation of Due Process
The Florida legislature did not violate due process or otherwise create an unconstitutional
criminally punishable offense in enacting Amendment Section 893.101. This Court has
consistently held that the elimination of mens rea is not in and of itself a violation of due process.
As long as the State ensures that general principles of fairness are maintained—primarily by
ensuring that individuals have proper notice about what type of behavior the State is
criminalizing—this Court has been unwilling to rule criminal statutes unconstitutional.
Additionally, in the instant case, lower courts have held that the statute does not completely
eliminate mens rea, but rather creates a general intent crime. See Maestas v. State, 76 So.3d 991.
Lastly, even assuming that Amendment Section 893.101 does completely eliminate mens
rea as an elements of certain drug crimes, it also provides for the availability of an affirmative
defense, discussed infra in section III, wherein individuals can assert a lack of knowledge as to
the illicit nature of the regulated substances. This provides sufficient procedural safeguards to
alleviate any and all due process concerns.
A. Historically, This Court has been Unwilling to Rule Criminal Statutes
Unconstitutional in Light of States’ Broad Police Power
Petitioners contend that eliminating the mens rea element of certain drug-related offenses
via statute constitutes a violation of due process. As already addressed, this Court has historically
afforded great deference to states in designing their own criminal justice systems. See Ewing v.
California, 538 U.S. 11, 12 (2003); Montana v. Egelhoff, 518 U.S. 37 (1996). Under this
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standard, due process is only violated when a state law or policy “offends some principle of
justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
Patterson v. New York, 432 U.S. 197, 201 (1977) (citing Speiser v. Randall, 357 U.S. 513, 523
(1958)).
In light of a state’s broad police power, there have been few instances where this standard
has been found satisfied. This Court long ago specifically rejected the principle argument that
petitioners make regarding the due process violation, that “punishment of a person for an act in
violation of law when ignorant of the facts making it so, is an absence of due process of law.”
United States v. Balint, 258 U.S. 250, 251 (1992). See also United States v. Averi, 715 F. Supp.
1508 (M.D. Ala. 1989) (holding “that the Government was not required to prove defendant was
aware of record-keeping requirements as element of crime”); Lambert v. People of the State of
California, 355 U.S. 225, 228 (1957) (“We do not go with Blackstone in saying that ‘a vicious
will’ is necessary to constitute a crime…for conduct alone without regard to the intent of the
doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to
exclude elements of knowledge and diligence from its definition”).
In fact, this Court’s aversion to invalidating criminal statutes on due process concerns is
so strong that, as the court in Shelton commented, “it suffices to note that only once, in Lambert
v. California, has the Supreme Court held a criminal provision unconstitutional under the Due
Process Clause for failing to require sufficient mens rea.” Shelton v. Sec’y. Dept. of Corr., 691
F.3d 1348, 1354 (11th Cir. 2012).
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B. Amendment Section § 893.101 Creates a General Intent Crime, Voiding
Notice Concerns
Although the elimination of mens rea for criminal offenses has been found constitutional
and not in violation of due process, the concern of notice still remains—“engrained in our
concept of due process is the requirement of notice. Notice is sometimes essential so that the
citizen has the chance to defend charges.” Id. Commentators have critiqued the Florida statute as
effectively casting too broad a net, creating a scope that “overreaches the constitutional
limitations in place for criminal laws.” Rachel A. Lyons, Florida's Disregard of Due Process
Rights for Nearly A Decade: Treating Drug Possession As A Strict Liability Crime, 24 St.
Thomas L. Rev. 350, 375-76 (2012). The argument here is that “an innocent person possessing
or engaging in” activities such as carrying a backpack/container “could find him or herself in an
unfortunate situation where by way of another individual…controlled substances are transferred
into that innocent person’s possession without his or her knowledge.” Id.
However, this critique is clearly not valid under the current construction of the statute. As
the court in Maestas v. State makes clear, the Florida statute in question “makes possession of a
controlled substance a general intent crime, no longer requiring the state to prove that a violator
be aware that the contraband is illegal.” Maestas v. State, 76 So. 3d 991 (Fla. Dist. Ct. App.
2011) review denied, 104 So. 3d 1085 (Fla. 2012). That is to say, the state still must prove that
an individual knew he/she was in possession of the substance; just not its illicit nature.
Aside from the fact that any notice concerns are ameliorated by the availability of an affirmative
defense (discussed infra), this construction of the statute eliminates the type of notice issue this
Court was concerned with in Lambert.
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In Lambert, this Court held that a municipal code that required convicts to register with
the local government in Los Angeles no more than five days after entering the city violated due
process because there was no way for convicts to know of the requirement before entering the
city. The statute criminalized behavior—merely being in a city—that is presumptively innocent.
Amendment Section 893.101, in eliminating mens rea for Section 893.13 offenses, is not
analogous to the statute in Lambert because knowingly possessing the types of the drugs Section
893.13 regulates—things like pills, powders, etc.—is in itself behavior that the average
individual should be on notice about as items that the government regulates.
Thus, Amendment Section 893.101 does not violate due process as set out in the
Fourteenth Amendment to the United States Constitution because our federal system of
government, in affording great deference to individual states’ broad police power, has translated
into this Court refusing to invalidate state criminal statutes on due process grounds in all but the
most egregious of violations. Here, Florida’s interest in regulating rampant drug use within its
borders constitutes a permissible use of its police powers. Amendment Section 893.101 creates a
general intent crime that criminalizes behavior that individuals are on notice as to the
government’s interest in regulating. Moreover, even assuming that the amendment eliminated all
mens reas as to certain drug crimes, the availability of an affirmative defense denying knowledge
of the illicit nature of the substances regulated, discussed infra Section III of this brief,
ameliorates any remaining due process concerns.
III. The Availability of an Affirmative Defense Eliminates Remaining Objections to
Amendment Section 893.101
An affirmative defense provides the accused with the opportunity to concede the
elements of the charge, but raise a recognized excuse to justify the violation of the offense. As
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previously discussed, “it is normally within the power of the State to regulate the procedures
under which its laws are carried out, including the burden of producing evidence and the burden
of persuasion.” 16 Fla. Jur. 2d Criminal Law § 129 (2013).
Amendment Section 893.101 provides the accused with the opportunity to assert its “lack
of knowledge of the illicit nature of a controlled substance” as an affirmative defense to the
offenses listed in Fla. Stat. Ann. § 893. Fla. Stat. Ann. § 893.101(2) (West 2002). Since the “lack
of knowledge of the illicit nature of a substance is distinct from lack of knowledge of the
presence of the substance,” Amendment Section 893.101 retains the government burden of
proving the accused knew of the presence of the substance. Maestas v. State, 76 So. 3d 991, 994
(Fla. Dist. Ct. App. 2011). Amendment Section 893.101 requires the government to rebut the
accused’s assertion of lack of knowledge of the illicit nature of the substance, provided the
accused raises the affirmative defense.
As a result, Amendment Section 893.101 alleviates Due Process concerns because it: (1)
disqualifies the statute as a strict liability crime; and (2) does not inappropriately shift the burden
of proof onto the accused for an element of an offense.
A.
Lack of Knowledge Defense Proves Legislature Did Not Intend to Create a
Strict Liability Crime
The availability of an affirmative defense of lack of knowledge precludes the offenses
listed in Florida Section 893 from becoming a strict liability crime. The Staples Test prohibits
strict liability for certain crimes when penalties are substantial or when the conviction carries
social stigma. Staples v. United States, 511 U.S. 600, 601 (1994). The Staples Court held it
would be a violation of Due Process if the government “would impose criminal sanctions on a
class of persons whose mental state…makes their actions entirely innocent.” Staples at 601.
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Here, Amendment Section 893.101 explicitly provides for an affirmative defense of lack
of knowledge and “because lack of knowledge is not a defense to a true strict liability crime, the
availability of the affirmative defense in section 893.101 undermines the essential premise in
Shelton that the offenses in section 893.13 are strict liability crimes that may not be
constitutionally punished as felonies.” Flagg v. State, 74 So. 3d 138 (Fla. Dist. Ct. App. 2011).
Amendment Section 893.101, therefore, is compatible with the holding in Staples since it does
not create a “true strict liability crime.” Id.
B.
The Government Bears the Burden of Proof for the Elements of the Offense
and Bears the Burden of Proof to Overcome an Affirmative Defense
Amendment Section 893.101 does not inappropriately shift the burden of proof upon the
accused. The Due Process Clause provides protection for “the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which
he is charged.” In re Winship 397 U.S. 358, 364 (1970). However, an affirmative defense does
not impose a burden on the accused to prove an element of the offense, because “an affirmative
defense does not concern itself with the elements of the offense at all; it concedes them.” Scott v.
Cohen, 568 So.2d 49, 51 (Fla. 1990).
This Court has largely upheld state legislative policy decisions to permit affirmative
defenses and have not found a violation of the Due Process Clause. Patterson v. New York, 432
U.S. 197, 210 (1977); Martin v. Ohio, 480 U.S. 228, 229 (1987). In Patterson, this Court upheld
a New York statute permitting extreme emotional distress as affirmative defense to a murder
charge against a due process challenge. The Patterson Court found “the Due Process Clause, as
we see it, does not put New York to the choice of abandoning those [affirmative] defenses or
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undertaking to disprove their existence in order to convict of a crime which otherwise is within
its constitutional powers to sanction by substantial punishment.” Id.
In Martin v. Ohio, the U.S. Supreme Court determined to “follow Patterson and other of
its decisions which allowed States to fashion their own affirmative-defense, burden-of-proof
rules.” Martin at 229. The Martin Court upheld an Ohio statute permitting self-defense as an
affirmative defense to a murder charge against a Due Process challenge: “We agree with the
State and its Supreme Court that this conviction did not violate the Due Process Clause. The
State did not exceed its authority in defining the crime of murder as purposely causing the death
of another with prior calculation or design. It did not seek to shift to Martin the burden of
proving any of those elements, and the jury’s verdict reflects that none of her self-defense
evidence raised a reasonable doubt about the State’s proof that she purposefully killed with prior
calculation and design.” Id. at 233. Drawing upon this Court’s holdings in Patterson and Martin,
an affirmative defense does not improperly impose a burden onto the accused and therefore does
not violate the Due Process Clause.
Here, the government must still prove the elements of the crimes as listed under Florida
Section 893 and prove the accused knowingly possessed the illicit substances. If the defense is
raised, the state must still prove beyond a reasonable doubt that the accused knew the illicit
nature of the substance. Indeed, Florida Standard Jury Instructions direct the jury to find
defendant not guilty if they “have reasonable doubt on the question of whether (defendant) knew
of the illicit nature of the controlled substance.” Fla. Std. Jury Instr. (Crim.) 25.7.
Secondly, the State’s affirmative defense resembles the affirmative defenses considered
by this Court in Patterson and Martin. Amendment Section 893.101 does not “require the
defendant to establish his innocence by proving a lack of knowledge… rather, the statute
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provides that if the defense is raised, the state has the burden to overcome the defense by proving
beyond a reasonable doubt that the defendant knew of the illicit nature of the drugs.” Flagg v.
State, 74 So. 3d 138, 140 (Fla. Dist. Ct. App. 2011). Since the government still carries the burden
of proof for the elements of the crime and must rebut the affirmative defense, Amendment
Section 893.101 is a valid exercise of the State’s police power, is consistent with Due Process
protections, and this Court’s precedent.
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CONCLUSION
For the reasons set forth, the State of Florida respectfully requests that this Court uphold
the rulings of the intermediate appellate courts of the State of Florida in their findings that
Florida Statute §893.101 is not unconstitutional.
Respectfully submitted.
Attorneys for Respondent,
The State of Florida
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