_________________________________
No. 12-1234
_____________________________________________
In the
SUPREME COURT OF THE UNITED STATES
SPRING TERM, 2013
_____________________________________________
DOE, ET AL.,
Petitioners,
v.
STATE OF FLORIDA,
Respondent.
_____________________________________________
ON WRIT OF CERTIORARI TO THE
FLORIDA SUPREME COURT
_____________________________________________
BRIEF FOR THE RESPONDENT
_____________________________________________
Team #13
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Questions Presented
I. May a state legislature constitutionally eliminate the mens rea element from a drug-related
offense when the legislature perceives a risk to the public welfare and the prescribed penalties
may reasonably reduce the risk?
II. Does the availability of an affirmative defense alleviate any constitutional concerns when it
allows defendants to rebut their mental culpability and does not negate an element of the crime?
ii
Table of Contents
Questions Presented.........................................................................................................................ii
Table of Contents............................................................................................................................iii
Table of Authorities.........................................................................................................................v
Statement of Facts............................................................................................................................1
Summary of the Argument...............................................................................................................1
Argument.........................................................................................................................................3
I.
Florida May Eliminate The Mens Rea Requirement From Fla. Stat. 893.13 When The
Legislature Has A Rational Basis And The Statute Protects The Public Welfare...............3
A. Florida may eliminate the mens rea requirement from Fla. Stat. § 893.13 because
the Florida legislature has a rational basis for doing so.................................................3
1. The Florida legislature has broad authority to define the elements of a crime...............4
2. Florida cannot base its policies on the remote possibility of negative results................8
B. Florida may enact a public welfare offense to protect its communities, and Fla.
Stat. § 893.13 achieves this goal..................................................................................10
1. Fla. Stat. § 893.13 protects public safety and recognized morals.................................11
2. Fla. Stat. § 893.13 regulates dangerous and deleterious substances.............................13
iii
3. Public welfare offenses may prescribe strict punishment for violations......................15
II.
The Affirmative Defense Alleviates Any Constitutional Concerns Because The Florida
Legislture Has Broad Authority To Create Affirmative Defenses And Their Existence
Cures Strict Liability Issues...............................................................................................17
A. Fla. Stat. § 893.13 satisfies due process because the availability of an affirmative
defense cures any strict liability issues........................................................................18
B. The Florida legislature can establish an affirmative defense and allocate the burden of
proof because lack of knowledge does not negate an essential element of the
crime............................................................................................................................19
1. The Florida legislature has broad authority to establish affirmative defenses and
allocate the burden of proof..........................................................................................19
2. The affirmative defense, lack of knowledge, does not negate an element that
Florida must prove beyond a reasonable doubt............................................................21
Conclusion.....................................................................................................................................23
iv
Table of Authorities
United States Supreme Court Cases
Dixon v. United States, 548 U.S. 1 (2006).....................................................................................20
Harmelin v. Michigan, 501 U.S. 957 (1991)...........................................................................4,9,15
Lambert v. California, 355 U.S. 255 (1957)..............................................................................4,6,7
Leland v. Oregon, 343 U.S. 790 (1952).........................................................................................19
Liparota v. United States, 471 U.S. 419 (1985)...............................................................................8
Martin v. Ohio, 480 U.S. 228 (1987).............................................................................................21
Medina v. California, 505 U.S. 437 (1992)...................................................................................20
Morissette v. United States, 342 U.S. 246 (1952)................................................................11,12,13
Mullaney v. Wilbur, 421 U.S. 684 (1975)......................................................................................22
Patterson v. New York, 432 U.S. 197 (1977).......................................................................20,21,22
Powell v. Texas, 392 U.S. 514 (1968)..............................................................................................4
Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57 (1910)...............................................................8
Smith v. United States, 133 S. Ct. 714 (2013)................................................................................21
Turner v. United States, 396 U.S. 398 (1970).................................................................................9
Staples v. United States, 511 U.S. 600 (1994)................................................................13,14,16,17
Ulster Cnty. Court v. Allen, 442 U.S. 140 (1979)..........................................................................18
United States v. Balint, 258 U.S. 250 (1922).......................................................8,9,11,13,14,15,19
United States v. Dotterweich, 320 U.S. 277 (1943)...............................................................8,10,15
United States v. Freed, 401 U.S. 601 (1971)..........................................................4,11,12,13,15,19
United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558 (1971)...........................................13
United States v. Park, 421 U.S. 658 (1975)...................................................................................11
Williams v. North Carolina, 325 U.S. 226 (1945).........................................................................15
v
Other Cases
Florida v. Adkins, 96 So. 3d 412 (Fla. 2012).............................................................................1,5,9
Guam v. Root, 524 F.2d 195 (9th Cir. 1975).................................................................................15
Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960).............................................................11
Illinois v. Brown, 457 N.E.2d 6 (Ill. 1983)......................................................................................8
In re Standard Jury Instructions in Criminal Cases, 969 So.2d 245 (Fla. 2007)..........................18
New Jersey v. Maldanado, 645 A.2d 1165 (N.J. 1994)..............................................................4,11
Quilici v. Vill. of Morton Grove, 695 F.2d 261 (7th Cir. 1982).......................................................4
United States v. Bunton, 2011 U.S. Dist. LEXIS 123945 (M.D. Fla. Oct. 26, 2011)......................9
United States v. Engler, 806 F.2d 425 (3d Cir. 1986)...................................................................16
United States v. Holland, 810 F.2d 1215 (D.C. Cir. 1987)...................................................4,5,7,11
United States v. Juvenile Male, 211 F.3d 1169 (9th Cir. 2000).....................................................18
United States v. Pliego, 578 F.3d 938 (8th Cir. 2009)...................................................................18
United States v. Ransom, 942 F.2d 775 (10th Cir. 1991)..............................................................15
United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993).....................................................11,15
Statutes
Fla. Stat. § 893.13 (2012)......................................................................................................passim
Fla. Stat. § 893.101 (2012).....................................................................................................passim
Other Authority
Exec. Office of the President of the U.S., Florida Drug Control Update (2011), available at
http://www.whitehouse .gov/sites/default/files/docs/state_profile_-_florida.pdf............................5
Substance Abuse & Mental Health Servs. Admin., State Estimates of Substance Use from the
2007-2008 National Surveys on Drug Use and Health (2010), available at
http://oas.samhsa.gov/2k8state/ Cover.pdf......................................................................................5
vi
U.S. Dep’t of Justice, Fact-Sheet: Drug-Related Crime (1994), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/ DRRC.PDF.....................................................................5
vii
Statement of Facts
To protect Florida residents, the Florida legislature enacted the Florida Comprehensive
Drug Abuse Prevention and Control Act (Fla. Stat. § 893.13). Florida v. Adkins, 96 So. 3d 412,
414 (Fla. 2012). The statute provides that “it is unlawful for any person to sell, manufacture, or
deliver, a controlled substance” or “to be in actual or constructive possession of a controlled
substance.” Id. at 414-15. Further, penalties for violating Fla. Stat. § 893.13 range from a
misdemeanor to a first-degree felony, depending on the substance involved. Id. at 415.
The Florida legislature did not address whether a mens rea element was necessary for
conviction. Id. As such, in 1996, the Florida Supreme Court held that absent express legislative
language, prosecutors were required to prove a mental element. Id. However, the Florida
legislature determined that such an interpretation did not adequately protect society. See id. In
response, the legislature enacted Fla. Stat. § 893.101, which provides that “knowledge of the
illicit nature of a controlled substance is not an element of any offense under this chapter. Lack
of knowledge of the illicit nature of a controlled substance is an affirmative defense.” Adkins, 96
So. 3d at 415. The Florida Supreme Court upheld the statute as constitutional, but found that the
statute still requires the prosecution to prove knowledge of possession. Id. at 423, 416.
Under these facts, it is clear that the Florida legislature acted within its constitutional
restraints. As explained below, the legislature had a rational basis for enacting Fla. Stat.
§ 893.13 and eliminating the mens rea element.
Summary of the Argument
Florida must act in the best interests of its residents. Because the Florida legislature had
a rational basis for enacting Fla. Stat. § 893.101, and because the affirmative defense cures any
strict liability issues, the Florida legislature acted constitutionally.
1
The Florida legislature has broad authority to define the elements of a crime. Thus, the
legislature may eliminate a mens rea requirement when a rational basis exists. A legislature is
not required to analyze all scenarios and address the remote possibility of a negative outcome.
Legislatures may require individuals to investigate items in their possession when doing so
protects the greatest number of people. In Florida, drugs have resulted in widespread addiction,
violence, and death. Accordingly, Florida had a rational basis for enacting Fla. Stat. § 893.13
and eliminating the mens rea element.
Legislatures may enact public welfare offenses to protect public safety and recognized
morals. A legislature that enacts a public welfare offense does so to create a social betterment
and is not concerned with an individual’s guilty mind. In Florida, drugs are a threatening
presence. Fla. Stat. § 893.13 was designed to eliminate that threat. Unlike murder or other
common law crimes, Fla. Stat. § 893.13 does not punish guilty behavior as much as it removes
the guilty behavior from society. Because the statute effectively protects public safety, it is a
constitutional public welfare offense.
Statutes that regulate dangerous or deleterious materials may prescribe strict punishments
for violations. However, the dangerous item must alert an individual of its likely regulation.
When violations occur, a legislature may rationally conclude that a harsh penalty is needed.
Drugs are dangerous substances that directly and indirectly generate death. Further, the
circumstances surrounding drugs should alert an individual to the likelihood of regulation. The
Florida legislature also has a rational basis for imposing strict penalties: light penalties ensure
that violators can quickly return to dangerous habits. Therefore, Fla. Stat. § 893.13 is a
constitutional public welfare offense.
Fla. Stat. § 893.13 is not a strict liability statute. The availability of the affirmative
2
defense cures any strict liability issues. True strict liability crimes do not allow a mistake of fact
defense. However, the Florida legislature allows defendants to argue lack of knowledge of the
substance’s illicit nature. Further, because legislatures have expertise in criminal procedure, they
have broad authority to establish affirmative defenses and to allocate the burden of proof.
Florida works hard to eradicate the risk of wrongful convictions, but due process does not require
Florida to follow procedures that favor the accused. Accordingly, Fla. Stat. § 893.13 satisfies
constitutional standards.
Argument
I.
Florida May Eliminate The Mens Rea Requirement From Fla. Stat. § 893.13 When
The Legislature Has A Rational Basis And the Statute Protects The Public
Welfare.
The Florida legislature enacted Fla. Stat. § 893.13 and removed the mens rea requirement
to address the Florida drug problem. The statute is constitutional A) because legislatures have
broad authority to act when there is a rational basis and B) because legislatures can utilize public
welfare offenses to protect the health and safety of their citizens. Thus, this Court should affirm
the Florida Supreme Court and give deference to the Florida legislature.
A. Florida may eliminate the mens rea requirement from Fla. Stat.
§ 893.13 because the Florida legislature has a rational basis for doing so.
The Florida legislature is in a unique position to analyze drug crime in Florida.
Eliminating the mens rea element from Fla. Stat. § 893.13 is constitutional because 1) the Florida
legislature has broad authority to define the elements of a crime and 2) Florida cannot base its
policies on the remote possibility of negative results. Accordingly, this Court should rule that
the Florida legislature acted constitutionally.
3
1. The Florida legislature has broad authority to define the elements of a crime.
As explained below, the Florida legislature did not enact a strict liability offense.
However, even if Fla. Stat. § 893.13 imposes strict liability, this Court has recognized the
validity of such statutes. Because the Florida legislature has broad authority to define the
elements of a crime, Fla. Stat. § 893.13 is constitutional.
It is well established that legislatures have broad authority to enact a criminal offense and
define its requisite elements. Lambert v. California, 355 U.S. 255, 228 (1957). As such, a
legislature can determine that the presence of moral culpability is not necessary to punish.
Powell v. Texas, 392 U.S. 514, 545 (1968). Statutes that dispense with a mens rea requirement
may be disfavored, but the legislature’s express removal satisfies constitutional standards.
United States v. Holland, 810 F.2d 1215, 1223 (D.C. Cir. 1987). Of course, a legislature should
not eliminate mens rea from an offense when doing so would criminalize “wholly passive”
behavior. Lambert, 355 U.S. at 228.
A strict liability statute must reasonably relate to the interest the legislature seeks to
protect. Quilici v. Vill. of Morton Grove, 695 F.2d 261, 268 (7th Cir. 1982). However, if a
problem exists, courts must presume that the legislature knows the appropriate means to address
it. Id.; See also Harmelin v. Michigan, 501 U.S. 957 (1991) (“The members of the [state]
legislature, and not [the Supreme Court], know the situation on the streets”). A legislature can
justify strict liability statutes by having a rational basis for its decision. See New Jersey v.
Maldanado, 645 A.2d 1165, 1173 (N.J. 1994) (offering evidence that all federal and state courts
besides Alaska follow such an approach). A threat to the public is a sufficient basis for imposing
strict liability and creating a slim possibility that innocent people may be prosecuted. United
States v. Freed, 401 U.S. 601, 610 (1971).
4
Florida is facing such a threat. Recent studies revealed that almost ten percent of Florida
residents over the age of twelve reported using illegal drugs within the last month. Substance
Abuse & Mental Health Servs. Admin., State Estimates of Substance Use from the 2007-2008
National Surveys on Drug Use and Health (2010), available at http://oas.samhsa.gov/2k8state/
Cover.pdf. Further, in 2007, drug use generated the deaths of 2,936 Florida residents, much
higher than the national average. Exec. Office of the President of the U.S., Florida Drug
Control Update (2011), available at http://www.whitehouse.gov/sites/default/files/docs/
state_profile_-_florida.pdf. According to the Fatal Accident Reporting System, thirty-three
percent of Florida motor vehicle fatalities involved a driver under the influence of drugs. Id. In
addition, national studies indicate that drug use instigates most violent crime. See U.S. Dep’t of
Justice, Fact-Sheet: Drug-Related Crime (1994), available at http://bjs.ojp.usdoj.gov/content/
pub/pdf/DRRC.PDF (around seventy percent of those arrested for robbery and around fifty
percent of those arrested for homicide and assault had drugs in their systems at the time of
arrest). By enacting Fla. Stat. § 893.13 and expressly eliminating the mens rea requirement,
Florida sought to address this threat. Adkins, 96 So. 3d at 421.
In Holland, the D.C. Circuit upheld a strict liability statute that prohibited the sale of
drugs within 1,000 feet of a school. 810 F.2d at 1217. While in the proximity of a junior high
school, the accused sold a morphine-based drug to an undercover agent. Id. The accused
maintained ignorance of his location and that the statute was over-inclusive because it regulated
transactions in private dwellings. Id. at 1217, 1219. The court noted that “the consequences of
such transactions inevitably flow from inside the dwellings onto the streets and contribute
directly to the violent and dangerous criminal milieu Congress sought to eliminate in the
proximity of schools.” Id. The legislative purpose was to deter drug dealers from targeting
5
schools and to reduce drug use by children. Id. at 1219. The court held that the statute was a
rational means of curtailing such activity and that Congress was justified in eliminating the mens
rea requirement. Id.
In Maldonado, the Supreme Court of New Jersey upheld a statute that held drug dealers
strictly liable for the drug-related death of a buyer. 645 A.2d at 1175. The defendant distributed
cocaine to a man and his girlfriend (“the victims”). Id. at 1169. The victims bagged the cocaine
in their apartment, and when police entered the apartment, they swallowed the bags of cocaine to
avoid prosecution. Id. As a result of the consumption, the victims went into convulsions and
died. Id. The defendant did not anticipate such circumstances and had no culpable intent. Id.
However, the court considered the legislature’s determination that in addition to the risk of death,
“the conduct sought to be deterred -- illegal drug manufacture and drug distribution -- is also
widely regarded as constituting the most substantial threat to public safety that now exists.”
Maldonado, 645 A.2d at 1172. The legislative history indicated that in 1986, more than 37,000
people suffered drug-related deaths in the United States, many of which were traced to the drug
trade. Id. at 1173. As such, the court found a rational basis for the legislature’s decision to
impose strict liability. Id. at 1175.
In Lambert, the Court found that a statute was unconstitutional when it imposed strict
liability on convicted felons who failed to register as city residents. 355 U.S. at 229-30. The
statute required a convicted felon that moved to or remained in Los Angeles for more than five
days to register with the city. Id. at 226. However, the Court found that the statute criminalized
behavior that was “wholly passive,” and no circumstances existed to “alert the doer to the
consequences of his deed.” Id. at 228. Since the statute did not lead violators to inquire about
the necessity of registration, the legislative purpose could not be achieved. Id. at 229. Thus, the
6
statute was unconstitutional. Id. at 229-30.
As in Holland and Maldonado, the Florida legislature had a rational basis for enacting
Fla. Stat. § 893.13 and for eliminating the mens rea element. Florida is facing a plethora of drugrelated problems. Individuals that distribute drugs put others at risk of addiction and over-dose.
Even the mere possession of drugs is a threat to society, as the presence of drugs precipitates
violence. Those who consume drugs may act uncharacteristically and put others in danger.
After all, most violent crime involves perpetrators under the influence of drugs, and thirty-three
percent of Florida motor vehicle fatalities were drug-related. Enacting a strict liability crime to
curtail the impact of drugs is sufficiently related to the problem at hand.
Unlike the legislature in Lambert, the Florida legislature did not criminalize wholly
passive behavior that served no legitimate purpose. While requiring felons to register does little
to prevent crime, forbidding the sale or possession of drugs deters threatening criminal activity.
It also incapacitates those who ignore the dangers of drug possession or have unreasonably failed
to recognize such dangers. Further, Fla. Stat. § 893.13 requires the prosecution to prove
knowledge of possession. Thus, to be convicted, a defendant must have taken some affirmative
action.
The Florida legislature is in the best position to assess Florida crime. Based on state and
national statistics, the legislature had a rational basis for enacting a drug statute with no mens rea
element. Since Florida acted in the best interests of its residents, courts should give deference to
the legislature’s decision. Accordingly, this Court should affirm the Florida Supreme Court and
find that Fla. Stat. § 893.13 is constitutional.
7
2. Florida cannot base its policies on the remote possibility of negative results.
In its pursuit to protect residents, Florida seeks to avoid wrongful convictions. However,
for the good of the public welfare, the legislature cannot hinder itself by addressing every
undesirable situation that may occur. As explained below, Florida has mechanisms in place to
protect innocent people, though this Court does not require such protections and has upheld
statutes that generate harsh results.
When addressing public safety, the legislature may require individuals to assess the
circumstances and act at their own peril. United States v. Balint, 258 U.S. 250, 252 (1922).
Indeed, a legislature can require individuals to investigate items in their possession and
determine their illegality. Illinois v. Brown, 457 N.E.2d 6, 7 (Ill. 1983) (defendant should have
investigated his vehicle and discovered the falsified vehicle identification number). While such a
strict duty may sometimes produce unpleasant results, courts “cannot set aside legislation
because it is harsh.” Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 70 (1910). As one state
court noted, “laws cannot be held invalid merely because some innocent person may possibly
suffer. The principle of police regulation is the greatest good to the greatest number.” Brown,
457 N.E.2d at 9.
Despite the risks, the chances of prosecuting innocent people are minimal. Legislatures
often enact strict liability crimes understanding that prosecutors will use their discretion and
practically prosecute violators. Liparota v. United States, 471 U.S. 419, 427 (1985). Indeed, to
address every possible consequence of a statute would be futile, and the legislature should
instead trust the “good sense of prosecutors, the wise guidance of trial judges, and the ultimate
judgment of juries.” United States v. Dotterweich, 320 U.S. 277, 285 (1943).
In addition, it is unlikely that a person could possess a controlled substance without
8
realizing its incriminating nature. See Balint, 258 U.S. at 254; Turner v. United States, 396 U.S.
398, 417 (1970) (common sense and practical experience should enable a person to ascertain the
illicit nature of a substance). The identity and nature of illegal drugs are discussed in easily
accessible sources, including mainstream media. Id. Further, given that controlled substances
are valuable and that numerous drug policies prohibit their production and distribution,
possession by an innocent individual would be highly unusual. United States v. Bunton, No.
8:10-cr-327-T-30EAJ, 2011 U.S. Dist. LEXIS 123945 at *25-26 (M.D. Fla. Oct. 26, 2011);
Adkins, 96 So. 3d at 421-22.
Nevertheless, the Florida legislature cannot encumber its legislation by anticipating every
possible negative outcome. Harmelin, 501 U.S. at 986. While it is easy for the Petitioner to
imagine wild hypotheticals in which an innocent person obtains a controlled substance, this
Court has been critical of the “parade of horribles” argument. Id. After all, “the process of
constitutional adjudication does not thrive on conjuring up horrible possibilities that never
happen in the real world and devising doctrines sufficiently comprehensive in detail to cover the
remotest contingency.” Id.
While Fla. Stat. § 893.13 does not require the prosecution to prove knowledge of a
substance’s illicit nature, it does require that the prosecution prove knowledge of possession. See
Adkins, 96 So. 3d at 416. Thus, an elderly woman who picks up the wrong bag or a high-school
student who has something planted in her locker would not be subject to prosecution. Florida
does not punish individuals who have no opportunity to investigate the situation.
Obtaining illegal drugs is costly and risky behavior. The drugs that many addicts steal
and even kill for are unlikely to surface in an innocent person’s possession. However, suppose
that an individual possesses a substance and is honestly unaware that the substance is an illegal
9
drug. A reasonable person would be suspicious of the unknown substance and either discard it
or alert the authorities. Arguably, a person who unknowingly possesses drugs is more dangerous
to society than those who knowingly possess them. For example, suppose the ignorant
individual shares the substance with children or negligently stores the substance within the reach
of children. The purpose of Florida’s statute is to protect innocent bystanders. While an
individual may sometimes innocently possess drugs, that individual is more capable of
investigating the situation than those that are unaware of the substance’s presence.
Nevertheless, Florida prosecutors have nothing to gain from convicting innocent people.
They are sworn to administer justice and are capable of using professional judgment when facing
an obviously innocent person. On the other hand, states have wrongfully convicted individuals
for crimes like rape and murder that actually require a mental element. Admittedly, no system is
perfect; however, no logical advocate would suggest the elimination of murder statutes because
innocent people have been convicted.
It is easy to imagine adverse scenarios, but the reality is that Florida communities
struggle with the presence of dangerous drugs. The Florida legislature is fully capable of
analyzing all scenarios and reaching a rational conclusion. When it enacted Fla. Stat. § 893.13,
the legislature determined that eliminating the mens rea element was the best method for
protecting Florida residents. The legislature cannot fail to act because the proposed regulation is
harsh. If so, society would suffer in the wake of indecision. Thus, this Court should give
deference to the Florida legislature and affirm the Supreme Court of Florida.
B. Florida may enact a public welfare offense to protect its communities, and Fla.
Stat. § 893.13 achieves this goal.
Public welfare offenses are a “now familiar type of legislation.” Dotterweich, 320 U.S. at
278. Typically, a public welfare offense requires 1) that the statute exists to protect the public, 2)
10
that the regulated activity involves dangerous or deleterious materials, and 3) that the penalty
imposed for a violation is relatively small. Holdridge v. United States, 282 F.2d 302, 310 (8th
Cir. 1960). Modern courts have followed these guidelines but have increasingly rejected that
penalties must be relatively small. See United States v. Weitzenhoff, 35 F.3d 1275, 1281 (9th Cir.
1993) (the modern view accepts “much more stringent terms of imprisonment”). In fact, if a
legislature is concerned with the public welfare, felony punishment for a general intent crime is
appropriate. Id. As such, Fla. Stat. § 893.13 is a constitutional attempt to protect the innocent
people of Florida.
1. Fla. Stat. § 893.13 protects public safety and recognized morals.
Fla. Stat. § 893.13 is constitutional because it protects public safety and recognized
morals. The legislature may depart with a mens rea requirement when regulating activities that
affect the public health, safety, and welfare. Freed, 401 U.S. at 607. A legislature enacting a
public welfare offense is not concerned with a violator’s culpability, but rather a social
betterment. Balint, 258 U.S. at 252. A public welfare offense both deters an activity and
prevents its contagiousness. Id. at 252-53 (the purpose of drug statutes is to curtail addiction).
In order to protect society, public welfare offenses put “the burden of acting at hazard upon a
person otherwise innocent but standing in responsible relation to a public danger.” United States
v. Park, 421 U.S. 658, 668 (1975).
The presence of drugs “seriously threatens the community’s health and safety.” Holland,
810 F.2d at 1223-24. The distribution of drugs puts the entire society in danger, whether by risk
of addiction or death. Maldanado, 645 A.2d at 1172). However, a public welfare offense can
protect society by removing illegal substances, and the individuals who carry them, from the
streets. Morissette, 342 U.S. at 257. Eventually, strict enforcement of such a statute would
11
“render violation impossible.” Id.
In Freed, the legislature acted constitutionally when it enacted a public welfare offense
that forbade the possession of hand grenades. 401 U.S. at 607. The Court determined that hand
grenades, like drugs, are a threat to society. Id. at 609. According to the Court, a public welfare
offense does not exist to protect the innocent possessor of hand grenades, but rather exists to
protect innocent bystanders. Id. at 610. Because the legislature designed the public welfare
offense to insure public safety, the statute was constitutional. Id.
In Morissette, eliminating the mens rea element from the statute was unconstitutional
because the statute did not establish a public welfare offense. 342 U.S. at 263. The defendant
converted government property but believed the property was abandoned. Id. at 247-48.
Because Congress did not expressly remove the mens rea requirement from the statute, the Court
refused to impose strict liability for the common law crimes of conversion and larceny. Id. at
260-62. Whereas public welfare offenses protect the general public, common law crimes punish
the guilty mind. Id. Thus, the Court required the prosecution to prove mens rea. Id. at 263.
Like the statute at issue in Freed, Fla. Stat. § 893.13 is a public welfare offense that
protects public health, safety, and welfare. Like hand grenades, illegal drugs have the potential
for destruction. They generate addiction, violence, and death. In addition, drug culture is
demoralizing for society and precipitates negative cultural norms. Unlike the statute in
Morissette, Fla. Stat. § 893.13 does not address a common law crime. Regulating drug
possession and distribution is a creature of statute. Unlike larceny or conversion, Fla. Stat.
§ 893.13 is not concerned with an individual’s guilty mind. Indeed, the statute does not punish
the individual as much as it protects society from the individual’s conduct.
Public welfare offenses ensure the greater good. By enacting its drug statute, the Florida
12
legislature intended to protect its residents. With strict enforcement, the statute could essentially
eradicate the presence of drugs and reduce the risk of innocent exposure. Thus, this Court should
affirm the Florida Supreme Court and uphold Florida’s public welfare offense.
2. Fla. Stat. § 893.13 regulates dangerous and deleterious substances.
Fla. Stat. § 893.13 is constitutional because it regulates dangerous drugs and because the
presence of such drugs would alert a reasonable person to the likelihood of regulation. A public
welfare offense that regulates dangerous or deleterious materials is constitutionally sound.
Freed, 401 U.S. at 609. However, the dangerous item must alert an individual of its likely
regulation. Staples v. United States, 511 U.S. 600, 608-09 (1994). Public welfare offenses are
not limited to dangerous materials; however, statutes that do regulate dangerous materials have
wide constitutional latitude. United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 56465 (1971) (“Pencils, dental floss, paper clips may also be regulated . . . [b]ut where [dangerous
materials] are involved, the probability of regulation is so great that anyone who is aware that he
is in possession of them . . . must be presumed to be aware of the regulation”). Illegal drugs are
“poisonous and demoralizing.” Balint, 258 U.S. at 253. Many drugs spawn the risk of death and
generate both organized crime and senseless, violent crime. Maldonado, 645 A.2d at 1172-73.
Public welfare offenses were created to regulate dangerous materials like drugs. Morissette, 342
U.S. at 255-56.
In Balint, the Court concluded that coca leaves and opium are dangerous substances that
need to be regulated. 258 U.S. at 254. All drugs present a risk of addiction and death within
society. Id. at 253-54. Further, drug transactions occur in a conspicuous and dangerous
atmosphere that should alert an individual to their illicit nature. Id. at 254. As such, the
legislature may justifiably enact a public welfare offense to address drug-related issues. Id.
13
In Staples, the Court held public welfare offenses were unconstitutional when they did
not alert individuals to the likelihood of regulation. 511 U.S. at 611. The defendant possessed
an unregistered firearm in violation of a federal statute. Id. at 602-03. While the Court
recognized that guns are dangerous items, it also recognized that there is a “long tradition of
widespread lawful gun ownership by private individuals in this country.” Id. at 610. To punish
an unknowing individual for what is otherwise legal conduct, violates all notions of fundamental
fairness. Id. Since guns are generally available to the public, individuals are not alerted to the
likelihood of regulation. Id. at 611. As such, the Court concluded that the public welfare offense
was unconstitutional. Id.
Like the legislature in Balint, the Florida legislature is attempting to regulate dangerous
drugs. Drugs are dangerous to both the user and those that associate with the user. Regulating
drugs is unlike regulating pencils and paper clips. Drugs are a threatening presence, the
regulation of which does not raise due process concerns. Unlike the guns at issue in Staples,
drugs do not have a long history of legal ownership by private individuals. A gun owner may
never investigate the nature of her weapon and may assume that her possession is legal.
However, those in possession of drugs are alerted to regulation not only by the dangerousness of
drugs, but also by the circumstances surrounding drugs. For example, those who buy and sell
drugs would likely do so in a conspicuous manner.
Further, individuals should be alerted to the possibility of regulation by the appearance of
controlled substances. Even if an individual did not know the substances were drugs, a
reasonable person would exercise caution and approach an unknown substance with suspicion.
Items such as pills and needles should be easily identifiable. However, in light of the recent
anthrax scares and other infamous threats, even less identifiable substances like cocaine and
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methamphetamine should alert an individual to possible regulation.
The presence of all controlled substances has an adverse effect on society. Given the
dangerousness of drugs, the Florida legislature justifiably enacted Fla. Stat. § 893.13 and
eliminated the mens rea element. As such, this Court should affirm the Florida Supreme Court
and allow the Florida legislature to effectively regulate dangerous substances.
3. Public welfare offenses may prescribe strict punishment for violations.
Since public welfare offenses may impose strict punishment, Fla. Stat. § 893.13 is
constitutional. While public welfare offenses traditionally imposed minor penalties, courts now
hold that such statutes can carry felonious sentences. See Freed, 401 U.S. at 604 (possessing an
unregistered firearm consisted of a $10,000 fine and up to ten years in prison); see also
Weitzenhoff, 35 F.3d at 1281. The legislature’s rational conclusion that a harsh penalty is needed
satisfies constitutional standards. Maldonado, 645 A.2d at 1171-72 (observing that nearly all
federal and state courts follow such a rule). Indeed, this Court has routinely upheld public
welfare offenses that impose draconian measures. See, e.g., Harmelin, 501 U.S. at 955-97
(upholding life imprisonment sentence for possession of cocaine); Williams v. North Carolina,
325 U.S. 226, 226-39 (1945) (upholding ten year prison sentence for bigamous cohabitation);
Dotterweich, 320 U.S. at 277-85 (upholding statute that imposed a $10,000 fine and up to three
years imprisonment for misbranding drugs); Balint, 258 U.S. at 250-52 (upholding drug statute
imposing up to five years imprisonment).
Further, felony murder and statutory rape offenses demonstrate a legislature’s ability to
protect the public by enacting harsh strict liability statutes. See Guam v. Root, 524 F.2d 195,
198-99 (9th Cir. 1975) (upholding felony murder as a strict liability crime that serves to protect
the public); United States v. Ransom, 942 F.2d 775, 777 (10th Cir. 1991) (upholding strict
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liability for felony statutory rape in order to protect society’s children). Thus, given society’s
concern with drug abuse, the legislature may justifiably mandate stern punishments for those
who violate drug statutes. Maldonado, 645 A.2d at 1175.
In Engler, the Third Circuit concluded that a strict liability statute imposing felony
punishment was constitutional. 806 F.2d at 435. The defendant violated a federal statute by
selling migratory birds and faced two years in prison and a $2000 fine. Id. at 427. The court
noted that the old rationale of minor penalties for strict liability crimes was no longer applicable
because misdemeanor and felony offenses are both harmful to a defendant’s reputation. Id. at
434. Further, the court found that a harsh punishment was likely to bolster deterrence. Id. at
434-35. Because the legislature reasonably determined that a harsh punishment was necessary,
the court upheld the statute as constitutional. Id.
In Staples, the Court noted in dicta that a ten year sentence was a further justification for
holding the strict liability crime unconstitutional. 511 U.S. at 618. The Court based its
conclusion on dated cases that examined minor public welfare offenses. Id. at 616-17 (citing
cases from 1803, 1864, 1867, 1915, and 1918). The Court reached its decision because the
legislature had not expressly removed the mens rea element from the statute. Id. at 618. Further,
possessing unregistered guns did not pose an immediate danger that warranted felony
punishment. Id. at 611, 618. However, the Court indicated that the statute could find
justification in an express intention by the legislature. Id. at 618.
Like the legislature in Engler, the Florida legislature determined that strict punishment is
necessary to deter drug crime and better protect society. Of course, the Florida legislature does
not punish the possession of all drugs equally. As the dangerousness of the drug increases, so
too does the penalty for possessing it. Florida proportionally imposes punishments to ensure the
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best result for its residents. Unlike the legislature in Staples, the Florida legislature expressly
removed the mens rea element and imposed strict penalties for violations. While gun possession
may not pose an immediate threat to society, drug possession and distribution pose imminent
threats that warrant felonious sentences.
If this Court limited Florida to prescribing minor penalties, it would foil the legislative
purpose. Florida imposes strict liability punishment to remove drugs and those who possess
them from society. Felony punishment ensures that a dangerous individual is removed from
society for an extended period of time. On the other hand, a misdemeanor allows an individual
to quickly reunite with dangerous habits. Further, if a conflicted individual faced a mere
misdemeanor, the desire for illicit drugs would likely outweigh the risks of punishment. The
Florida legislature undoubtedly made such determinations when enacting its drug statute. Like
statutory rape and felony murder statutes, Fla. Stat. § 893.13 imposes serious penalties to curtail
highly reprehensible and dangerous behavior. Since Florida has a rational basis for such
penalties, Fla. Stat. § 893.13 is constitutional. Accordingly, this Court should give deference to
the Florida legislature and affirm the Florida Supreme Court.
II.
The Affirmative Defense Alleviates Any Constitutional Concerns Because The
Florida Legislature Has Broad Authority To Create Affirmative Defenses And
Their Existence Cures Strict Liability Issues.
The Florida legislature allows defendants to raise an affirmative defense. While not
constitutionally required, Florida provides defendants with this opportunity to protect against
wrongful convictions. Indeed, the availability of the affirmative defense alleviates any
constitutional concerns because its presence cures the strict liability issues. Further, Florida may
place the burden of proof on the defendant because legislatures have broad authority in matters
of criminal procedure and the affirmative defense does not negate an essential element of the
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crime. Accordingly, this Court should affirm the Supreme Court of Florida.
A. Fla. Stat. § 893.13 satisfies due process because the availability of an affirmative
defense cures any strict liability issues.
Fla. Stat. § 893.13 is not a strict liability offense and should not be scrutinized as such. A
true strict liability crime affords the defendant no affirmative defense. See United States v.
Pliego, 578 F.3d 938, 942-43 (8th Cir. 2009) (individual accused of producing child
pornography was not entitled to an affirmative defense); United States v. Juvenile Male, 211
F.3d 1169, 1170-71 (9th Cir. 2000) (individual accused of statutory rape could not raise a
mistake of age defense). Indeed, if a jury may consider a defendant’s culpability, the underlying
statute does not impose strict liability. See id.
The statute at issue provides defendants with an affirmative defense. Fla. Stat.
§ 893.101(2) (2012) (“lack of knowledge of the illicit nature of a controlled substance is an
affirmative defense”). The statute also creates a permissive presumption that the defendant had
knowledge of the substance’s illicit nature. Id. However, permissive presumptions are merely
inferences that a jury can draw from the evidence. Ulster Cnty. Court v. Allen, 442 U.S. 140,
157 (1979). Further, courts do not require juries to abide by permissive presumptions. Id. The
jury instructions for Fla. Stat. § 893.13 are illustrative: “If you have a reasonable doubt on the
question of whether (defendant) knew of the illicit nature of the controlled substance, you should
find (defendant) not guilty.” In re Standard Jury Instructions in Criminal Cases, 969 So.2d 245,
249 (Fla. 2007).
Unlike statutory rape and other strict liability statutes, Fla. Stat. § 893.13 allows
defendants to challenge their guilt. An innocent individual can escape conviction by
demonstrating that she was not mentally culpable. Further, the permissive presumption is not an
unreasonable burden to overcome. A truly innocent individual will have access to evidence that
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establishes her innocence. The defendant only needs to raise a doubt with the jury to escape
conviction.
Due process does not require that Florida provide defendants with this protection. After
all, this Court upheld the convictions in Balint and Freed, even though the defendants were
strictly liable for their conduct. Nevertheless, the Florida legislature is not in the business of
convicting innocent people. While Florida is concerned with protecting the public welfare,
avoiding wrongful convictions is just as important. Because Fla. Stat. § 893.13 provides
defendants with an affirmative defense, the statue does not create a strict liability crime. Rather,
it creates a public welfare offense with integrated protections. Accordingly, the availability of an
affirmative defense satisfies any constitutional concerns.
B. The Florida legislature can establish an affirmative defense and allocate the
burden of proof because lack of knowledge does not negate an essential element
of the crime.
Though the affirmative defense provides defendants with protection and alleviates
constitutional concerns, the Petitioner argues that Fla. Stat. § 893.101 is unconstitutional because
it places the burden on defendants to prove the affirmative defense. Such an argument is
unsound. This Court recognizes that state legislatures are best suited to determine appropriate
criminal procedures. As long as an affirmative defense does not negate an essential element of
the crime, the legislature may constitutionally allocate the burden of proof. Thus, Fla. Stat.
§ 893.101 is constitutional.
1. The Florida legislature has broad authority to establish affirmative defenses and
allocate the burden of proof.
The Florida legislature acted constitutionally when it required defendants to prove an
affirmative defense. Legislatures have wide discretion in determining affirmative defense
criteria and allocating the burden of proof. Leland v. Oregon, 343 U.S. 790, 799 (1952).
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Because of the states’ expertise in criminal procedure, courts give deference to legislative
decisions. Medina v. California, 505 U.S. 437, 445-46 (1992). A state’s decision to recognize
affirmative defenses does not require the state to prove every mitigating circumstance beyond a
reasonable doubt. Patterson v. New York, 432 U.S. 197, 209 (1977). Indeed, due process does
not require “that every conceivable step be taken, at whatever cost, to eliminate the possibility of
convicting an innocent person.” Id. at 208. Nor does due process require states to follow
procedures that favor the accused. Medina, 505 U.S. at 451.
States are precluded from infringing on fundamental rights. Patterson, 432 U.S. at 201.
However, courts narrowly interpret due process infractions, and a state with a rational basis for
shifting the burden of proof satisfies constitutional standards. Medina, 505 U.S. at 443. After
all, “the social cost of placing the burden on the prosecution to [negate an affirmative defense] is
an increased risk that the guilty will go free.” Patterson, 432 U.S. at 208.
In Dixon, the Court found that legislatures are best situated to determine appropriate
criminal procedures. Dixon v. United States, 548 U.S. 1, 7 (2006). The defendant illegally
purchased firearms but claimed she was under duress. Id. at 3-4. The statute allowed the
defendant to raise an affirmative defense but did not require the prosecution to disprove it. Id. at
4. According to the Court, the legislature justifiably determined that “where the facts with
regard to an issue lie peculiarly in the knowledge of a party, that party has the burden of proving
the issue.” Id. at 9. The Court concluded that the legislature could require the defendant to
prove duress in order to protect its citizens and ensure justice. Id. at 16-17.
Like the legislature in Dixon, the Florida legislature may justifiably determine that
defendants are in the best position to prove an affirmative defense. While Florida may struggle
to obtain the necessary witnesses and uncover essential evidence, defendants know their guilt or
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innocence better than anyone. Proving negative knowledge is easier than proving positive
knowledge. For example, a defendant could offer witnesses that discuss the defendant’s low
intelligence or her reputable character. By placing the burden on the defendant, the Florida
legislature effectively protects the public welfare but also limits the possibility of convicting an
innocent person. After careful deliberation, the legislature made a rational decision. Thus, this
Court should give deference to the Florida legislature and affirm the Florida Supreme Court.
2. The affirmative defense, lack of knowledge, does not negate an element that
Florida must prove beyond a reasonable doubt.
Florida’s affirmative defense is constitutional because it does not negate an element of
the crime. In a criminal proceeding, a state must prove every element beyond a reasonable
doubt, but it has no duty to prove the nonexistence of affirmative defenses. Smith v. United
States, 133 S. Ct. 714, 719 (2013). However, when an affirmative defense negates an element of
the crime, the state cannot shift the burden of proof. Martin v. Ohio, 480 U.S. 228, 237 (1987).
Where the affirmative defense raises a separate issue that would excuse illegal conduct, it does
not negate an essential element. Patterson, 432 U.S. at 207. Thus, the burden of proof may be
lifted from the state and cast on the defendant. Id. at 202-03.
In Patterson, the legislature appropriately required the defendant to prove the affirmative
defense. Id. at 206-07. The defendant was charged with second degree murder, and New York
allowed him to raise an affirmative defense, “act[ing] under the influence of extreme emotional
disturbance.” Id. at 198. By raising the affirmative defense, the defendant admitted his conduct,
but raised a separate issue to excuse his guilt. Id. at 207. The statute did not require malice
aforethought as an element of the offense. Id. at 198. Thus, New York carried its burden of
proof on all elements of the crime, and the affirmative defense did not negate any of those
elements. Patterson, 432 U.S. at 206. Accordingly, New York did not deprive the defendant of
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due process. Id. at 205.
In Mullaney, the Maine legislature acted unconstitutionally when it required a murder
defendant to prove an affirmative defense that reduced the crime to manslaughter. Mullaney v.
Wilbur, 421 U.S. 684, 684-85, 703 (1975). The Maine statute established that malice
aforethought was an indispensable element of murder. Id. at 686. Thus, the defendant’s
affirmative defense, acting in the heat of passion, negated an element that the state was required
to prove. Id. at 687. Without proof of culpability, the defendant could be charged with a crime
he did not commit. Id. at 702. As such, the Court determined that Maine’s statute violated due
process. Id. at 704.
Like the statute in Patterson, Fla. Stat. § 893.13 eliminates a mental element of the crime.
The prosecution is not required to prove knowledge of a substance’s illicit nature. The
prosecution can establish guilt by proving beyond a reasonable doubt that the defendant
possessed a controlled substance and had knowledge of the possession. Thus, the affirmative
defense, lack of knowledge of a substance’s illicit nature, raises a separate issue that excuses the
defendant’s conduct. The defendant raising such an affirmative defense concedes the essential
elements, and the affirmative defense does not negate those elements. Unlike the statute in
Mullaney, Fla. Stat. § 893.13 does not require a defendant to establish a lesser crime. In
Mullaney, the defendant was required to perform the prosecution’s job and determine which
crime he had committed. However, Florida does not place such a burden on defendants. Florida
does not require defendants to negate an element of the crime; it provides them with an
opportunity to excuse their guilt.
As due process requires, Florida bears the burden of establishing a defendant’s guilt. The
Florida legislature appropriately determined that knowledge of a substance’s illicit nature was
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not an element of the crime. Thus, the prosecution is not required to prove it and is not required
to disprove the defendant’s affirmative defense. Accordingly, this Court should affirm the
Supreme Court of Florida.
Conclusion
Due process does not require the Florida legislature to ignore death and destruction.
Florida has an obvious drug problem, and the legislature has enacted legislation that can
effectively address it. Fla. Stat. § 893.13 protects the public welfare by curtailing the presence of
dangerous drugs. The drug dealers, abusers, and possessors that ignore it will meet stern
punishment. However, Florida does not turn a blind eye to the possibility of innocent
possession. Therefore, the legislature has provided defendants with an affirmative defense. No
legislation is impeccable, but for the greater good, legislatures must act in their deliberate
discretion to find the best possible solution. The Florida legislature has done just that. For the
foregoing reasons, this Court should affirm the Florida Supreme Court and ensure the protection
of Florida residents.
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