Supreme Court
Of the United States
Doe et. Al,
)
Petitioner,
v.
)
)
February 25, 2013
)
Florida
)
)
Respondent
Case No. 12-1234
)
)
On Writ of Certiorari to the Supreme Court
Brief for Respondent
Table of Contents
Table of
Contents…………………………………………………………………………........…..ii
Table of Authorities………………………………………………………………..……iii
I. Statement of Jurisdiction……………………………………………………………...1
II. Statement of Questions Presented…………………………...………………………1
III. Statement of Case……………………………………………………………………1
IV. Summary of Argument…………………………………………………...…………2
V. Argument…………………………………………………………………………..….4
I.
The legislature may constitutionally eliminate mens rea as an element in
certain drug-related offenses ……………………………………………….4
A. History of Legislative Authority…………………………………………….5
1. Removal of Mens Rea......................................................7
2. The Florida Legislature Enacts §893.101………………8
B. Appellate History.............................................................................................10
II.
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...........................................................15
A. § 893.13 is a general intent statute.................................................................18
B. Follow the leader............................................................................................20
C. Notice...............................................................................................................21
VI. Conclusion……………………………………………………………….………….23
Table of Authority
Cases
Armenia v. Dugger, 867 F. 2d 1370 (1989)................................................................................... 11
Burnette v. State, 901 So. 2d 925 (2005) ......................................................................10, 13, 17, 18
Chicone v. State, 684 So. 2d 736 (1996). ...................................................................................8, 17
Coleman v. State ex rel. Jackson, 140 Fla. 772 (1939). ...............................................................3, 6
Crist v. Ervin, 56 So.3d 745 (Fla.2011). ......................................................................................... 1
Dennis v. United States, 341 U.S. 494 (1951). ................................................................................ 6
Doe v. Pryor, 344 F. 3d 1282 (2003) ............................................................................................ 14
Fla. House of Representatives v. Crist, 999 So.2d 601 (2008). ...................................................... 6
Florida v. Washington, No. 3D11-2244, 2012 WL 2400879 (37Fla. L. Weekly D1535). ........... 18
Harris v. State, 932 So. 2d 551 (2006) .......................................................................................... 10
Johnson v. State, 37 So. 3d 975 (2010) ..............................................................................10, 13, 14
Lambert v. California, 355 U.S. 225 (1957) .......................................................................... passim
Leland v. Oregon, 343 U.S. 790 (U.S. 1952). ............................................................................... 20
Liparota v. United States, 471 U.S. 419 (1985). ......................................................................12, 13
Maestas v. State, 76 So.3d 991 (2011). ......................................................................................... 13
Miller v. State, 35 So. 3d 162 (2010) ............................................................................................ 14
Morissette v. United States, 342 U.S. 246 (1952). ............................................................. 5, 7, 8, 11
Mullaney v. Wilbur, 421 U.S. 69 ................................................................................................... 19
Patterson v. New York, 432 U.S. 197 (1977). ......................................................................7, 18, 19
Roche v. State, 462 So. 2d 1096 (1985) ........................................................................................ 14
Schmitt v. State, 590 So.2d 404 (1991). .......................................................................................... 5
Scott v. State, 808 So.2d 166 (2002). .............................................................................................. 9
Shelton v. Sec'y, Dep‘t. of Corr., 802 F. Supp.2d 1289 (2011). ...............................................12, 13
Shevlin–Carpenter Co. v. Minnesota, 218 U.S. 57 (1910) .............................................................. 7
Staples v. United States, 511 U.S. 600 (1994).................................................................. 3, 8, 11, 22
State v. Adkins, 96 So.3d 412 (2012)........................................................................................16, 17
State v. Bradshaw, 152 Wash. 2d 528 (2004). .............................................................................. 20
State v. Cohen, 568 So.2d 49 (1990). ............................................................................................ 15
State v. Dwyer, 332 So.2d 333 (1976) ........................................................................................... 14
State v. Giorgetti, 868 So.2d 512 (2004). ........................................................................................ 6
State v. Gray, 435 So. 2d 816 (1983). ............................................................................................. 6
State v. Green, 602 So.2d 1306 (1992).......................................................................................... 10
State v. Medlin, 273 So.2d 394 (1973). ........................................................................................... 9
State v. Oxx, 417 So.2d 287 (1982) ................................................................................................. 6
Taylor v. State, 929 So. 2d 665 (2006), ....................................................................................10, 14
Titus v. State, 696 So. 2d 1257 (1997) .......................................................................................... 14
United States v. Balint, 258 U.S. 250 (1922). .................................................................. 7, 8, 13, 21
United States v. Cordoba-Hincapie, 825 F. Supp. 485 (1993) ........................................................ 5
United States v. Fletcher, 634 F. 3d 395 (2011)............................................................................ 11
United States v. Freed, 401 U.S. 60 (1971)................................................................................... 13
United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558 (1971) ........................................... 13
United States v. Ranson, 942 F. 2d 775 (1991) ............................................................................. 11
United States v. Sistrunk, 622 F. 3d 1328 (2010) .......................................................................... 11
Williams v. State, 45 So. 3d 14, 15-16 (2010) ............................................................................... 14
Wright v. State, 920 So. 2d 21 (2005) .................................................................................... passim
Statutes
28 U.S.C. § 1257(a). ........................................................................................................................ 1
Art. II, § 3, Fla. Const...................................................................................................................... 1
Art. V, § 3, Fla. Const.. ................................................................................................................... 1
Fla. Stat. §893.101 (2002). .....................................................................................................1, 9, 15
Fla. Stat. §893.13(1)(a) (2012). ................................................................................................1, 2, 4
Other Authorities
Black’s Law Dictionary (9th ed. 2009). .......................................................................................... 5
Blackstone, Commentaries; M. Foster, Crown Law 255 (1762) ................................................... 19
John Calvin Jeffries, Jr. & Paul B. Stephan III, 88 Yale L. J. 1325. ............................................. 21
I. Statement of Jurisdiction
The state courts of Florida had original jurisdiction over the matter of Florida v
Adkins which concerned West's F.S.A. § 893.13 and West's F.S.A. § 893.101 pursuant to
art. V, § 3(b)(5), Fla. Const.. After being reviewed by the Florida Supreme Court, an
appeal to the Supreme Court of the United States is appropriate pursuant to 28 U.S.C. §
1257(a). Furthermore, “The constitutionality of a statute is a question of law subject to de
novo review.” Crist v. Ervin, 56 So.3d 745, 747 (Fla.2011).
II. Statement of Questions Presented.
Whether the Florida Legislature may constitutionally eliminate mens rea as an
element of certain drug-related offenses.
Whether the availability of an affirmative defense through which an accused may
establish 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.
III. Statement of Case.
This case comes before the Court as a culmination of forty-six separate criminal
cases. These cases considered the constitutionality of Florida Statute § 893.13, a
provision of the Florida Comprehensive Drug Abuse Prevention and Control Act. The
constitutional claim at issue is whether knowledge of the illicit nature of a controlled
substance is a required element or mens rea for the crimes as proscribed by § 893.13.
Further, whether the addition of an affirmative defense as proscribed by § 893.101
eliminates any constitutional concerns raised by the first issue
1
The Twelfth Judicial Circuit held that § 893.13 was unconstitutional pursuant to both
the United States and the Florida Constitutions. Based on this ruling, motions to dismiss
charges were granted in all forty-six cases. These holdings were based on the finding that
the legislature violated Due Process restrictions by eliminating the required finding that
the defendant had knowledge of the illicit nature of the substance.
The Second District Court of Appeals passed these cases on to the Supreme Court of
Florida for immediate resolution because of the great public importance attached to the
statute at issue. The Florida Supreme Court reversed the decision from the circuit court
and held that the provisions were constitutional and not in violation of the Due Process
Clause.
IV.
Summary of Argument.
The state of Florida maintains that § 893.13 is constitutional. Section 893.13, of the
Florida Comprehensive Drug Abuse and Control Act, criminalizes the possession of
controlled substances. Fla. Stat. §893.13(1)(a) (2012). Section 893.13 does not state
whether mens rea is an included requirement of the crime. Therefore, read without
implication, the statute does not require the state prove the defendant had knowledge of
the illicit nature of the substance. The lack of a mens rea requirement in § 893.13 has
caused challenges that the statute is unconstitutional. These challenges must fail since the
legislature has the power to create statutes that do not include mens rea and the inclusion
of an affirmative defense in §893.101. Under the principle of separation of powers, the
authority to create statutes is one specifically granted to the legislature. Great deference is
given to the legislature in creating and implementing statutes, and it is within the
2
legislature’s power to decide whether a requirement of intent need be included in a crime.
Coleman v. State ex rel. Jackson, 140 Fla. 772, 775-76 (1939).
In light of confusion regarding whether the legislature intended a mens rea in §
893.13, the state passed § 893.101 which both clarified the legislature’s intent to have no
mens rea requirement, and included an affirmative defense. Challenges following the
enactment of § 893.101 argued that the lack of mens rea rendered the statute one of strict
liability. The State disagrees with the claim that § 893.101 is a strict liability statute, and
instead maintains that it is a general intent statute. However, even if the Court were to
find that § 893.101 is a strict liability statute, the statute would still pass the tripartite
strict liability analysis set forth in Staples v. United States. 511 U.S. 600, 605-06 (1994).
The inclusion of an affirmative defense in § 893.101 further invalidates any argument
that the lack of a mens rea requirement in the statute is unconstitutional. The State argues
that, because of the defendant’s right to an affirmative defense, § 893.101 is a general
intent, rather than a strict liability statute. While mens rea is not required with regards to
the illicit nature of the substance, the State must still prove mens rea regarding the actual
possession of a substance. In cases where the activity being punished is one that may be
inherently innocent, such as Lambert v. California, 355 U.S. 225, 242 (U.S. 1957)(the
innocent failure of a felon to register in a state) or Staples v. United States, 511 U.S.
600(failure to register a firearm that the owner didn’t know qualified) is a lack of mens
rea unconstitutional. Not only is § 893.13 constitutional on its face, after the inclusion of
an affirmative defense in § 893.101, there remains no valid argument that the statute is
unconstitutional.
3
V.
I.
Argument.
The legislature may constitutionally eliminate mens rea as an element in
certain drug-related offenses
In an effort to curtail statewide drug issues, Florida enacted the Florida
Comprehensive Drug Abuse and Control Act. At issue here is § 893.13, which provides
“it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to
sell, manufacture, or deliver, a controlled substance.” Fla. Stat. §893.13(1)(a) (2012).
Additionally, “it is unlawful to be in actual or constructive possession of a controlled
substance.” Fla. Stat. §893.13 (6)(a) (2012). Controlled substances are further defined
under §893.03. Violations of the statute provide for penalties ranging from a
misdemeanor to a first-degree felony depending upon specific recidivism factors. While
the statute does not require proof of mens rea regarding the illicit nature of the substance,
the State must still prove knowledge of actual possession for a conviction.
The statutory scheme may raise Fourteenth Amendment Due Process implications.
Art. II, §3, Fla. Const. This Amendment states, in relevant part, “nor shall any State
deprive any person of life, liberty, or property, without equal due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.” Although
these issues are expansive and complex, the State intends to prove that § 893.13 as
amended by § 893.101 is in congruence with the United States Constitution and should
be upheld.
The appropriate Constitutional standard for analyzing such issues is rational basis
review. Brazill v. State, 845 So.2d 282, 287 (2003). To pass rational basis review, a
showing that there is a rational relationship between a legitimate governmental interest
and actions taken to uphold the interest is required. In the criminal context “a due process
4
violation occurs if a criminal statute's means is not rationally related to its purposes and,
as a result, it criminalizes innocuous conduct.” Schmitt v. State, 590 So.2d 404, 413
(1991). Here, the State maintains an interest in combating ongoing drug crimes within its
borders. Additionally, the State has an ongoing interest in protecting the health, safety,
and general welfare of its citizens. To achieve this goal the State crafted legislation
specifically to deter citizens from engaging in drug activity. Since the State has a clear
interest in protecting its citizens from a known scourge and has created a specific
statutory scheme to do so, such actions pass rational basis review.
A. History of Legislative Authority
Taken literally, mens rea means a “guilty mind.” As it relates to criminal law,
mens rea describes a person’s mental state or culpability. Black’s Law Dictionary (9th
ed. 2009). The term refers to the requisite mental state needed to offend a particular
statute. Although the idea of mens rea can be traced to original English criminal law, it
has unique application in the American system. One such example is the enactment of
“Common Welfare Offenses.” These offenses were created under American law and
focus on the result as opposed to the intent of the perpetrator of a crime. Common
Welfare Offenses, promote the general welfare by punishing criminals for offenses in the
name of reducing recidivism and deterring future crimes. United States v. CordobaHincapie, 825 F. Supp. 485, 496 (1993); Morissette v. United States, 342 U.S. 246, 256
(1952).
Although common welfare offense cases do not generally require a “guilty mind”,
a mens rea requirement is found in the majority of statutes. Dennis v. United States, 341
5
U.S. 494, 500 (1951). Though that is a general rule, exceptions exist. Such exceptions
show an American willingness to retract mens rea in order to promote societal wellbeing.
It is important to note that the creation of statutes, criminal or otherwise, is a
power granted to the legislature. Fla. House of Representatives v. Crist, 999 So.2d 601,
615 (2008). “The Legislature generally has broad authority to determine any requirement
for intent or knowledge in the definition of a crime.” State v. Giorgetti, 868 So.2d 512,
515 (2004). It is within the expressly granted power of the Legislature to prohibit an
action or to proclaim an action a crime “regardless of the intent or knowledge of the
violation thereof.” Coleman v. State ex rel. Jackson, 140 Fla. 772, 775-76 (1939). Such
sentiment was echoed in the landmark case State v. Gray:
It is within the power of the legislature to declare conduct criminal without
requiring specific criminal intent to achieve a certain result; that is, the
legislature may punish conduct without regard to the mental attitude of the
offender, so that the general intent of the accused to do the act is deemed
to give rise to a presumption of intent to achieve the criminal result. The
legislature may also dispense with a requirement that the actor be aware of
the facts making his conduct criminal.
State v. Gray, 435 So. 2d 816, 819-820 (1983). (See also State v. Oxx, 417 So.2d 287
(Fla. 5th DCA 1982)). Further, the judicial branch is constitutionally forbidden from
exercising any lawmaking powers appertaining to the legislative branch under Art. II, § 3
of the Florida Constitution. These grants of authority provide the legislature with broad
autonomy to act in their intended capacity. Under the principle of separation of powers, it
is well established that judicial interference with the legislature’s authority is
unconstitutional.
6
1.
Removal of Mens Rea
The Supreme Court has consistently refused to interpret the Constitution as
requiring a mens rea requirement for all offenses. Patterson v. New York, 432 U.S. 197,
210 (1977). Mens rea is typically required for a conviction within the American criminal
system. Dennis v. United States, 341 U.S. 494, 500 (1951). Such requirements allowed a
defendant to claim ignorance. The Supreme Court in United States v. Balint
unambiguously rejected “ignorance of a defendant” as a defense to criminal charges.
United States v. Balint, 258 U.S. 250, 252 (1922).
More specifically that Court found, “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.” Id. The Court based this decision on the grounds that, “the state may in the
maintenance of a public policy provide ‘that he who shall do [proscribed acts] shall do
them at his peril and will not be heard to plead in defense good faith or ignorance.’” Id.,
at 252 (quoting Shevlin–Carpenter Co. v. Minnesota, 218 U.S. 57, 70, (1910)). Also note
that the penalties dealt with in the Balint case were substantial and similar to the potential
penalties at issue under § 893.13. The Court further stated in Morissette v United States,
“We attempt no closed definition, for the law on the subject is neither settled nor static.”
Morissette, 342 U.S. at 260. Given this sentiment, the state would proscribe that the
Court to continue to grant deference to the legislature on this issue.
The Supreme Court deemphasized culpability, finding “A relation between some
mental element and punishment for a harmful act is almost as instinctive as the child's
familiar exculpatory ‘But I didn't mean to,’ and has afforded the rational basis for a tardy
and unfinished substitution of deterrence and reformation…as the motivation for public
7
prosecution.” Id., at 250-51. As this quote illustrates, the Supreme Court has left space
for legislatures to create criminal statutes without a mens rea requirement. Lambert v.
California, 355 U.S. 225, 228-30 (1957); see Staples v. United States, 511 U.S. 600
(1994); Morissette, 342 U.S. at 275. One example of legislative deference comes from
Staples v. U.S. There the Court stated, “Since the legislature is vested with the authority
to define the elements of a crime, determining whether scienter an essential element of a
statutory crime is a question of legislative intent.” Staples, 511 U.S. at 603–605;
Morissette, 342 U.S. at 258–59; Balint, 258 U.S. at 252. It should be noted that the
legislature’s discretion in creating mens rea requirements is not unbridled. Specifically, a
legislature may eliminate a mens rea requirement by making an affirmative statement as
to their intent to do so. In the absence of clear legislative intent, the court may interpret
statutes to require mens rea.
2.
The Florida Legislature Enacts §893.101
The Supreme Court of Florida first reviewed §893.13 in the 1996 case Chicone v.
State. There, the Court examined whether or not the statute should be understood to
require a mens rea component. Chicone v. State, 684 So. 2d 736, 738 (1996). In Chicone,
the court read the statute to require the State to prove that the defendant had knowledge
of the illicit nature of the substances in their possession. Id., at 744. The Court justified
this interpretation by stating, “If the legislature had intended to make criminals out of
people who were wholly ignorant of the offending characteristics of items in their
possession, and subject them to lengthy prison terms, it would have spoken more clearly
to that effect.” Id., at 743. Thus, although the legislature has the authority to eliminate a
mens rea requirement, the Court requires a clear showing of this intention.
8
In Scott v. State, the court clarified the reasoning in Chicone. The Court found
that two mens rea elements were required: knowledge of the presence of the actual
substance in question and knowledge of the illicit nature of that substance. Scott v. State,
808 So.2d 166, 169 (2002). Scott also acknowledged the presumption from both State v.
Medlin and Chicone that a defendant’s knowledge, of the illicit nature of a controlled
substance, may be presumed based upon possession. Id., at 171-72. See also State v.
Medlin, 273 So.2d 394, 397 (1973). Scott reiterated this presumption is only valid in
situations where the State proves actual personal possession of the substance and not
mere constructive possession. Scott, 808 So.2d at 171-72. Actual possession as discussed
in Scott relates to a person’s knowing possession of the substance. This clarification
eliminates any situations where a person may incidentally possess a substance without
their knowledge.
Following the decisions in Cicone and Scott where the Court read in a mens rea
element, the legislature created and passed §893.101(1):
(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No.
SC94701 (Fla. 2002) and Chicone v. State, 684 So.2d 736 (Fla. 1996),
holding that the state must prove that the defendant knew of the illicit
nature of a controlled substance found in his or her actual or constructive
possession, were contrary to legislative intent.
Fla. Stat. §893.101 (2002). This text of §893.101 clarifies the legislature’s intent of not
requiring proof of mens rea in regarding a substance’s illicit nature. A mens rea
requirement of knowledge of possession is still required. With the new statute’s showing
of legislative intent, the holdings in Cicone and Scott, are no longer relevant.
9
B.
Appellate History
The Florida appellate courts have upheld §893.13 as amended by §893.101 as
passing constitutional muster even though the statute lacks a specific mens rea
requirement. See Wright v. State, 920 So. 2d 21 (2005); Burnette v. State, 901 So. 2d 925
(2005); Taylor v. State, 929 So. 2d 665 (2006), rev. denied, 952 So. 2d 1191 (2007);
Harris v. State, 932 So. 2d 551 (2006); Johnson v. State, 37 So. 3d 975 (2010). These
cases primarily relied upon the third part of § 893.101, the availability of an affirmative
defense. The Court in Wright stated that an affirmative defense is permissive but “The
statute simply provides that once this defense is utilized, a permissive presumption
attaches, allowing the jury to draw an inference from the facts. It is mandatory and
conclusive presumptions that are prohibited.” Wright, 920 So. 2d at 25. The addition of
an affirmative defense in § 893.101 will be addressed later in this brief.
The State contends that elimination of the mens rea requirement in § 893.13
pursuant to § 893.101, creates a general intent crime as opposed to a strict liability crime.
General intent crimes require a “general kind of knowledge” to do a certain act, which is
a much lesser standard than a specific knowledge requirement. State v. Green, 602 So.2d
1306, 1308 (1992). However, if this Court finds that the offense in § 893.13 is a strict
liability offense, the Petitioner will likely recommend the use of the tripartite analysis as
described in Staples.
The Staples case involved the unlawful possession of an unregistered machine
gun. Staples asserted that he did not have knowledge that the rifle in question had been
modified to the extent that it was now fully-automatic requiring registration. The Court
implemented a three part analysis when addressing the Constitutionality of strict liability
10
statutes: (1) the severity of the penalty imposed; (2) the stigma associated with
conviction; and (3) the type of conduct purportedly regulated. Staples, 511 U.S. at 619–
20.
The first part of the Staples tripartite analysis discusses the severity of the penalty
that may be imposed on a defendant within a Constitutional and Due Process framework.
The Court places the severity of the potential sentence on a spectrum where the greater
the severity, the greater the likelihood mens rea will be inserted. Although the penalties
under this statute are not insubstantial, neither the “United States Supreme Court nor any
other court has undertaken to delineate a precise line or set forth comprehensive criteria
for distinguishing between crimes that require a mental element and crimes that do not.”
Staples, 511 U.S. at 620 (quoting Morissette, 342 U.S. at, 260). Without a set standard, a
case specific analysis should be utilized.
While the Supreme Court has had ample opportunity to create a framework to
judge the severity of the penalty, the Court has chosen not to. As such, a case by case
analysis is required. In this set of cases, a violation of §893.13 could lead to potentially
serious sentences, however, numerous cases involving strict liability offenses have been
held constitutional even though severe penalties have been assessed to the criminal
defendant. See United States v. Ranson, 942 F. 2d 775 (1991) (rape of child under 12,
sentenced to 135 months); United States v. Sistrunk, 622 F. 3d 1328 (2010) (possession
of firearm by convicted felon under federal statutes was a strict liability offense,
sentenced to 200 months); Armenia v. Dugger, 867 F. 2d 1370 (1989) (Florida's DUI
manslaughter statute and element of causation, sentenced to 12 years); United States v.
Fletcher, 634 F. 3d 395 (2011) (strict liability offense delineating requirement of victim
11
in production of child pornography in violation of federal statute, with 40 year sentence
imposed, held constitutional). Thus claims that these penalties are too excessive are
unsupported by Supreme Court precedent.
The second part of the Staples test examines whether the statute places a
significant social stigma on a defendant. This prong looks at the effect of a sentence on
the defendant’s reputation. The court has noted “The label of ‘convicted felon’ combined
with a proclamation that the defendant is so vile that he must be separated from society
for fifteen to thirty years, creates irreparable damage to the defendant's reputation and
standing in the community.” Shelton v. Sec'y, Dep‘t. of Corr., 802 F. Supp.2d 1289, 1302
(2011). In our case, §893.13 allows for penalties involving first degree misdemeanors all
the way up to first degree felonies. Again, the Court has refused to set a clear line of
when the social stigma of a sentence becomes so large that due process issues arise. The
Courts choice to not make a clear distinction indicates that a case by case analysis should
be used. The State requests that the Court draw a line between drug crimes as opposed to
more severe crimes. Even though all felonies have some form of repercussion, we would
ask the Court to differentiate a crime of drug possession as opposed to a more vile crime
such as rape or murder.
The third part of the Staples test deals with criminalizing inherently innocent
behavior. Petitioner may claim that the Court “require[s] proof of mens rea in order to
avoid criminalizing ‘a broad range of apparently innocent conduct.’” Liparota v. United
States, 471 U.S. 419, 426 (1985). See also Shelton, 802 F. Supp.2d at 1302-03. Holdings
in cases such as Freed, International Minerals, and Balint, show that actions or
possession of certain items seriously threaten the community at large and thus a
12
reasonable person should know that those items are regulated. Liparota, 471 U.S. at 43233. See United States v. Freed, 401 U.S. 60 (1971)(hand grenades); United States v. Int'l
Minerals & Chem. Corp., 402 U.S. 558 (1971)(corrosive liquids); Balint, 42 S.Ct at
301(legalized narcotics). The State contends that possession of illicit narcotics
substantially threatens the community and is not inherently innocent activity.
Petitioner may point to the Lambert case. The Court held in Lambert, “There is
wide latitude in the lawmakers...But we deal here with conduct that is wholly passive—
mere failure to register. It is unlike the commission of acts, or the failure to act under
circumstances that should alert the doer to the consequences of his deed.” Lambert, 355
U.S. at 228. The distinction in our case is clear. Unlike the mere failure to register as in
Lambert; the State has the burden to prove that the defendant engaged in an affirmative
action of possession as opposed to merely passive conduct. Furthermore, the State still
carries the burden of proving the defendant had “knowledge” of the presence of the
substance. Maestas v. State, 76 So.3d 991, 994–95 (2011). For the subsequent reasons,
the Court should find that §893.13 pass the Staples tripartite analysis and held
constitutional.
Petitioner may argue that Shelton v. Sec'y, Dep‘t. of Corr. is controlling in this
matter. Shelton, 802 F. Supp.2d at 1289. Shelton is a federal district court case where it
was held that §893.13 as amended by §893.101 is facially unconstitutional because it
reformed violations of the statute into strict liability offenses, thus violating due process.
Shelton in its holding relies on the tripartite analysis laid out in Staples v. United States.
Shelton, 802 F. Supp. 2d at 1298. There the federal district court disregarded both Florida
13
state court and Florida appellate court decisions that specifically decided this issue of
state law when it formed its holding. Wright, supra; Johnson, supra; Burnette, supra.
It must be noted the Shelton case is neither binding nor persuasive authority here.
The Eleventh Circuit Court of Appeals and the Florida Supreme Court agreed that “even
though lower federal court rulings may be in some instances persuasive, such rulings are
not binding on state courts.” State v. Dwyer, 332 So.2d 333, 335 (1976); Doe v. Pryor,
344 F. 3d 1282 (2003); Titus v. State, 696 So. 2d 1257 (1997); Roche v. State, 462 So. 2d
1096 (1985) (finding that a United States District Court's finding a Florida statute
violated the Fourth Amendment was not binding on the state courts; the statute was
constitutional); Johnson, 37 So. 3d at 975; Miller v. State, 35 So. 3d 162, 163 (2010);
Williams v. State, 45 So. 3d 14, 15-16 (2010) (per curiam); Harris, 932 So. 2d at 552(per
curiam); Taylor, 929 So. 2d at 665. Moreover, The Court in Wright upheld the statute as
valid under both the Florida and Federal Constitutions. Wright, 920 So. 2d at 25. Until
the U.S. Supreme Court holds otherwise, the decisions as held by the courts of appeal are
binding, rather than the ruling in Shelton. The Court today should follow the Appellate
Courts lead in holding the constitutionality of § 893.13 against due process attacks.
While the requirement of mens rea is common, it has not been held mandatory for
a statute to pass Constitutional muster. The doctrine of separation of powers has granted
province to the legislature to decide whether a particular mens rea is required or whether
a given statute should have a general intent foundation. For these reasons, the State
argues that § 893.13 as modified by § 893.101 is a general intent statute as opposed to
strict liability. In the alternative, if the Court finds that §893.13 as modified by §893.101
is a strict liability statute, the State contends that the statute still passes constitutional
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muster. More specifically, the availability of an affirmative defense to knowledge of the
illicit nature of the substance described in section § 893.101(B) satisfies any further
constitutional concerns.
II.
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.
The second and third portions of Florida’s statute 893.101 states:
(2) The Legislature finds 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 to the offenses of this chapter.
(3) In those instances in which a defendant asserts the affirmative defense
described in this section, the possession of a controlled substance, whether
actual or constructive, shall give rise to a permissive presumption that the
possessor knew of the illicit nature of the substance. It is the intent of the
Legislature that, in those cases where such an affirmative defense is
raised, the jury shall be instructed on the permissive presumption provided
in this subsection.
Fla. Stat. § 893.101 (2002). The Supreme Court of Florida defines an “affirmative
defense” as “any defense that assumes the complaint or charges to be correct but raises
the other facts that, if true, would establish a valid excuse or justification or a right to
engage in the conduct in question.” State v. Cohen, 568 So.2d 49, 52 (1990). While the
State maintains that the lack of a mens rea requirement in § 893.13 does not render it
facially unconstitutional, the inclusion of an affirmative defense eliminates any remaining
argument that § 893.13 is a strict liability statute and thus unconstitutional.
To argue that § 893.101 is unconstitutional, petitioners may claim that the statute
shifts the burden of proof from the State to the defendant, making possession of an illicit
substance a strict liability crime. However, the inclusion of an affirmative defense
concerning a defendant’s intent invalidates that theory. Section 893.101 allows a
15
defendant to prove ignorance of the illegal nature of the substance. However, the State
must still carry the burden of proving that the Defendant knowingly possessed the
substance.
Given that mens rea is a traditional component in many criminal offenses,
distinguishing whether its elimination results in a strict liability or a general intent crime
can be complicated. The language in § 893.101(2) however, clearly specifies that the
legislature is eliminating mens rea regarding the illicit nature of the substance, as
opposed to eliminating mens rea from the actual possession of the substance. This
important distinction invalidates the argument that § 893.101 is a strict liability statute. In
his concurrence with the upholding of § 893.101 in State v. Adkins, Justice Pariente
explained that the act is facially constitutional because:
(1) (it) continues to require the State to prove that a defendant had
knowledge of the presence of the controlled substance as an element of
drug-related offenses and (2) expressly authorizes a defendant to assert
lack of knowledge of the illicit nature of the controlled substance as an
affirmative defense.
State v. Adkins, 96 So.3d 412, 424 (2012) (Pariente, J., concurring)(emphasis added).
In reviewing § 893.101, the Fourth District Court of Appeal of Florida found, that §
893.101 makes the crime of possession of a controlled substance a general intent crime,
and not one of strict liability. Wright, 920 So.2d 21, 24 (2005). The Wright court explains
that while the state may not shift the burden of proving an element of a crime to the
defendant, this is not the function of an affirmative defense. Rather, an affirmative
defense concedes the element of the offense, but gives a reason or excuse for why the
defendant should not be guilty of the crime. Id., 920 So.2d at 24.Therefore, under §
893.101, the state must prove knowledge of possession but not knowledge of the illicit
nature of the substance.
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In Wright, the court explained that, “The knowledge element does not need to be
proven, but if the defendant puts it at issue, then the jury is going to hear about it, and the
defendant must work to rebut the presumption.” Id. Wright then goes on to explain that
there is a recognizable concern that legislatures may create “illusory” defenses. Such
defenses may be poorly written and in actuality do create situations where the defendant
must prove his case, with slight likelihood of success. However, this is not the case with
the Florida statute. Id. The court in Wright concluded that, because the statute removes
the knowledge of the illegal nature of the substance from the state’s burden, and not
actual knowledge of possession, the statute is constitutionally valid. Id. While a
permissive presumption attaches on the defendant’s decision to argue an affirmative
defense, mandatory presumptions are prohibited. Id. at 25.
A due process challenge could only be sustained if the Statute had shifted the burden
of the actual possession aspect from the State to the defendant, which is not the case here.
Instead, “The affirmative defense does not ask the defendant to disprove something that
the State must prove in order to convict, but instead provides a defendant with an
opportunity to explain why his or her admittedly illegal conduct should not be punished.”
Adkins, 96 So.3d at 423. The Statute in question allows the State to punish an act without
proving specific intent; however it does not eliminate the State’s burden to prove general
intent. Chicone, 684 So.2d 736, 740 (1996). Therefore, the argument that § 893.101
violates due process for being a strict liability statute is not valid.
The Second District Court of Appeals of Florida found in Burnette that, because of
the existence of the affirmative defense in § 893.101, the statute is constitutionally valid.
The court explains that the legislature has the right to define the elements of a crime and
17
to decide when mens rea requirement should be attached. Further, “An affirmative
defense does not involve proof of the elements of the offense, but rather conceded the
elements while raising other facts that, if true, would establish a valid excuse or
justification, or a right to engage in the conduct in question.” Burnette, 901 So.2d at 927
(2005). While the affirmative defense in § 893.101 places a burden on the defendant to
prove ignorance of the illicit nature of the substance, it does not remove the burden from
the state to prove beyond a reasonable doubt the elements of the crime. Therefore, the
court thus concluded, due process was not violated by changing the State’s burden of
proof, and the constitutional challenge had to fail. Id. at 928.
A. § 893.13 is a general intent statute
In Florida v. Washington, the Third District Court of Appeals explained the
difference between the general intent statute in question and an actual strict liability
statute. For instance, with statutory rape in Florida, it is a second degree felony for a
person over the age of 24 to engage in sexual activity with a person who is 16 or 17 years
old. Florida v. Washington, No. 3D11-2244, 2012 WL 2400879 (37Fla. L. Weekly
D1535). In that strict liability statute, the defendant is not provided with an affirmative
defense to argue that ignorance. Id. at 4. This complete lack of defense renders that
statute one of strict liability. Section 893.101 includes and affirmative defense and is thus
distinct from such strict liability statutes.
A classic interpretation of how an affirmative defense upholds due process is
provided in the Supreme Court case Patterson v. New York. In Patterson, a man accused
of murder, was given the opportunity for an affirmative defense of extreme emotional
distress to mitigate the offense to manslaughter. Patterson, 432 U.S. 197 (S. Ct. 1977).
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Noting that the business of regulating laws and determining placement of the burden of
persuasion are normally within the powers of the State, and not the Federal Government,
the Court states:
In determining whether New York's allocation to the defendant of proving
the mitigating circumstances of severe emotional disturbance is consistent
with due process, it is therefore relevant to note that this defense is a
considerably expanded version of the common-law defense of heat of
passion on sudden provocation and that at common law the burden of
proving the latter, as well as other affirmative defenses indeed, “all . . .
circumstances of justification, excuse or alleviation” rested on the
defendant.
Patterson, 432 U.S. at 202, citing Blackstone, Commentaries; M. Foster, Crown Law 255
(1762); Mullaney v. Wilbur, 421 U.S. 69. (Emphasis added). The Court in Patterson
further explains that, “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, 432 U.S. at 210.
Punishment and the attached social stigma for the crime of murder, is generally
far more severe than the punishment for drug possession. Even with such a severe crime,
the Supreme Court firmly states that it is well within the rights of the states to determine
whether an element of the crime can be allocated as an affirmative defense without
violating due process. The Court in Patterson was willing to accept that “if the
intentional killing is shown, the State intends to deal with the defendant as a murderer
unless he demonstrates the mitigating circumstances.” Id. If the actual possession is
proven, the defendant is found to have committed the criminal act, unless the defendant
demonstrates that his possession was without knowledge of its illegal nature. Id., at 206.
The affirmative defense of extreme emotional disturbance in Patterson, is
comparable to the affirmative defense offered by the State of Florida in § 893.101. Just as
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the lack of emotional culpability of the defendant is not an element of the crime in
murder, the ignorance of the illegal nature of a substance is not an element to the crime of
possession. For example, under 893.101, if a defendant maintained that someone had
slipped something onto their person at an airport unbeknownst to them, the court would
have to find this to be untrue. This is clearly distinguishable from a similar example in
which the defendant was carrying something knowingly for someone else, but claimed
that they did not know that it was an illegal substance.
B. Follow the leader
The Supreme Court found in Leland v. Oregon, that even when the state’s
decision to place a burden of proof on the defendant was alone amongst the other states’
statutory schemes, the due process clause was still not offended. The Court stated in
Leland, “The fact that a practice is followed by a large number of states is not conclusive
in a decision as to whether that practice accords with due process…” Leland v. Oregon,
343 U.S. 790, 798 (U.S. 1952). Again in State v. Bradshaw, the Washington Supreme
Court reviewed a challenge to the constitutionality of a statute that dealt with a similar
affirmative defense. The court explained that defendants were incorrect in arguing that
this was a Due Process violation. Since defendants can prove unwitting possession, a
strict liability crime is not created and the burden of proof is permitted to be shifted to the
defense. State v. Bradshaw, 152 Wash. 2d 528, 538 (2004). While Florida’s elimination
of a mens rea requirement from may warrant more suspicion, the fact alone that other
states have not chosen to eliminate the mens rea element does not make 893.101
unconstitutional. The fact that Florida has eliminated a mens rea requirement from §
893.101 where other states have not does not render it unconstitutional.
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In Defenses, Presumptions, and Burden of Proof in the Criminal Law, the authors
explain that “The constitutional focus should be not on what the state invited the accused
to prove by way of mitigation but on what state law required the government to prove in
order to establish liability in the first instance.” John Calvin Jeffries, Jr. & Paul B.
Stephan III, 88 Yale L. J. 1325. With § 893.101, the state must prove the defendant was
in actual possession of the illicit substance, (again, therefore not creating a strict liability
statute) allowing the accused an opportunity to affirmatively argue lack of knowledge of
the illicit nature of the substance.
C. Notice
Another argument that has been made with regard to the constitutionality of §
893.101, is that the Due Process Clause of the Constitution is violated because the
defendant has no notice that their conduct is illegal. This argument is fundamentally
flawed, for the reason that ignorance of law is not a valid defense for conduct that is not
inherently innocent. Balint, 258 U.S. 250, 252 (1922). Further, an affirmative defense
allowing the defendant to argue innocence concerning knowledge of the nature of the
substance in their possession, eliminates constitutional concerns that notice is not given.
Unlike Lambert v. People of the State of California where the Supreme Court found that
a California statute which required that convicted felons who planned to remain in the
state for more than five days to register, was in violation of the Due Process clause of the
Fourteenth Amendment; citizens of Florida should already have notice that to possess
illicit substances is illegal. Lambert, 355 U.S. 225, 242 (U.S. 1957).
The statute in Lambert punished the defendant for her innocent failure to do
something which she had no knowledge that she was required to do. This is different than
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the drug possession statute at issue in Florida, which punishes a person’s active conduct
of possessing illegal substances. Lambert and cases like it that have held statutes
unconstitutional for punishing inherently innocent behavior are clearly distinguishable
from the situations that would fall under § 893.101. It is also significant that the Court in
Lambert disagreed, “that a ‘vicious will’ is necessary to constitute a crime, for conduct
alone without regard to the intent of the doer is often sufficient.” Id. The Court goes on to
state that the legislature is given broad freedom in deciding the elements of knowledge to
a statute. However, in this particular case where the defendant’s passive failure to register
constituted a crime, Due Process was violated. Id. at 228.
The Supreme Court in Staples examined a case where there was no mens rea
requirement provided in a statute forbidding possession of an unregistered firearm. In
Staples, the Court found that the government should have had the burden to prove that the
defendant knew that the gun at issue was the type of firearm requiring registration. The
Court explained that gun ownership in the United States is a long held legal right that can
be entirely innocent. Consequently, for the government to construe the statute with no
mens rea requirement would have the potential to criminalize the innocent actions of
those ignorant of the requirements of the statute. Staples, 511 U.S. at 613.
The passive failure to register a gun is distinct from the affirmative act of
possessing illicit drugs. Additionally, because of the inclusion of an affirmative defense
in § 893.101, defendants may argue ignorance of the illicit nature of the substance in their
possession; appellants’ argument is further invalid.
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VI. Conclusion
As explained above, the state of Florida maintains that it is within the constitutional
power of the legislature to eliminate a mens rea requirement from Florida § 893.13.
Further, any constitutional concerns regarding the lack of mens rea, are invalidated by the
State’s inclusion of an affirmative defense in § 893.101. A defendant’s right to present an
affirmative defense as to lack of knowledge of the illicit nature of a substance in their
possession makes the statute one of general intent, rather than strict liability, and one that
is constitutional.
Respectfully submitted,
Team 27
Attorney for the Respondent
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