An illegal, misguided law

A high school student asks his friend to store a backpack in his locker. Unbeknownst to his friend, that backpack contains marijuana. Though he had no knowledge — and no reason to even suspect — that the backpack contained illegal drugs, the friend is guilty of drug possession under current Florida law.

A drug dealer in Tampa mails crystal methamphetamine to a customer in Miami. Every postal worker who handles that package is guilty of drug possession under current Florida law, whether they know what was in that package or not.

Basic notions of justice dictate that the state should have to prove beyond a reasonable doubt that a person knowingly or intentionally committed a drug crime. However, in Florida, the state does not have to prove knowledge or intent to convict a defendant of a serious felony drug offense.

That law is misguided, unfair, and — according to a federal judge in Orlando and a Miami-Dade County circuit judge — unconstitutional. A law that criminalizes such obviously innocent behavior is not only unconstitutional, it's just plain wrong. It has no place on the books in Florida.

In 2002, the Legislature eliminated the intent requirement that had always been in the criminal drug statute. That made Florida the only state in the country with "strict liability" felony drug laws that do not require the prosecutor to prove beyond a reasonable doubt that the defendant knew he possessed illegal narcotics or intended to do so. In other words, since 2002, it is a very serious crime in Florida to accidentally or unintentionally possess illegal drugs.

Because Florida's drug statute is fundamentally flawed, cases in state and federal courts are currently in limbo. On July 27, U.S. District Judge Mary Scriven issued a lengthy, well-reasoned opinion finding that Florida's strict liability drug statute is unconstitutional as written. Judge Scriven found that the law's lack of an intent element violated the due process clause of the United States Constitution.

This ruling affects untold numbers of federal defendants and inmates whose convictions and sentences would be — or were — based upon federal statutes that take into account prior Florida drug convictions. For example, federal defendants charged with (or previously convicted of) possession of a firearm by a felon whose underlying felony was Florida's unconstitutional drug statute, or federal inmates whose sentences were increased based upon a prior Florida drug conviction, may now challenge their charges or sentences. The state has appealed Scriven's ruling to the federal appeals court.

Scriven is not alone in finding Florida's law to be unfair and unconstitutional. On Aug. 17, Miami-Dade County Circuit Judge Milton Hirsch dismissed 39 drug cases based upon his own decision that the strict liability drug statute violates the U.S. Constitution. Attorney General Pam Bondi has made clear that her office intends to appeal this ruling in the state courts. To date, the Legislature has made no move to amend the law to make it constitutional.

The rulings are based upon well-established U.S. Supreme Court precedent. In the 1952 case of Morisette v. United States, the Supreme Court stated that requiring an intent element to be proven in criminal cases is "firmly rooted" in American jurisprudence. More recently, in Staples v. United States, the Supreme Court held that strict liability criminal statutes are permitted only where the penalty imposed is slight, a conviction does not result in substantial stigma, and the statute regulates inherently dangerous conduct.

Florida's felony drug statute very obviously fails to meet this criteria — it subjects defendants to many years in prison and the serious stigma of a felony drug conviction.

Bondi sharply criticized Hirsch's ruling, stating it is "fundamentally flawed and unduly hinders prosecutors' efforts to keep criminals off our streets." In fact, the ruling does not frustrate any effort to put drug dealers in prison. It merely enforces the Constitution and makes it less likely that innocent citizens are wrongly convicted. Prior to 2002, drug dealers were not going free en masse because the state was required to prove that they intended to possess drugs. Nor will the streets fill with dangerous narcotics traffickers if we restore Florida's drug statute to its pre-2002, constitutional form.

The solution to this unfortunate situation is not for the state to file futile appeals in defense of an illegal and misguided law. That expensive effort will take months, if not years, to wind its way through the state and federal appellate courts. Rather, it is time for the Florida Legislature to put the intent requirement back into our state's drug statute. That is the only way to make Florida's drug law fair, just and constitutional.