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Dating back about 400 years is the bedrock common law principle of criminal law that a crime essentially consists of two elements -- the guilty act itself (actus reus) and the guilty mind of the individual offender (mens rea). The mens rea requirement is essentially the mental aspect of criminal liability. In order to be guilty of most crimes a defendant must have committed the offense while under a certain mental state, such as when his conscious object or purpose is to cause a criminal result or engage in prohibited conduct, or when he intends to bring about a certain harm if he knows with virtual certainty that his actions will cause said harm.

, the Florida Supreme Court plainly expressed just how fundamental this knowledge element of the crime of possession of a controlled substance is by stating, “a defendant is entitled to an instruction on that element, and... t is error to fail to give an instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance.”

In the 1996 case of Chicone v State and the 2002 case of Scott v. State, the Florida Supreme Court expressly held the crime of possession of a controlled substance under the state’s Drug Abuse Prevention and Control Act (Fla. Stat. §893.13) included the mens rea element as part of the offense, and that an offender could only be subject to the criminal penalties of the law if the state proved the mens rea requirement. In Scott

The Florida legislature responded by amending the Drug Abuse Prevention and Control Act later in 2002 and inserted language stating, “knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter.” By amending the law the legislature made it so the state is no longer required to prove an offender knew the contraband possessed is in fact an illegal controlled substance under the statute. Essentially, someone arrested for possession of a controlled substance is now guilty of the crime even if they did not knowingly possess the drug they are being charged with. By doing so, Florida is now the only state to expressly eliminate mens rea as an element of a drug crime.

On October 5, 2004, Mackle Vincent Shelton was arrested and charged with a myriad of crimes, including the delivery of cocaine. Shelton was eventually convicted in state court for delivering the cocaine, among other charges, and because the conviction occurred after the amendment to the Florida drug law, no jury instruction was given in regards to the knowledge element of the offense.

While Shelton’s appeals were all denied at the state level, he finally found relief when he filed a habeas corpus petition in federal court. Judge Mary S. Scriven of the U.S. District Court for the Middle District of Florida held in Shelton v. Secretary, Department of Corrections, the state’s drug law, as amended, is facially unconstitutional as a violation of the due process clause of the 14th Amendment to the U.S. Constitution. She further called Florida’s drug law “draconian and unreasonable,” and the legislature’s elimination of the mens rea element “atavistic and repugnant to the common law….”

Judge Scriven’s reasoning was based on three components: (1) the penalties under Florida’s Drug Abuse and Control Act are too severe to lack a knowledge element; (2) the social stigma associated with a felony conviction is so significant that it should require the finding of a guilty mind; and (3) the law can essentially regulate completely innocent conduct -- for instance someone being convicted for delivering or possessing a bag without knowing what is in it.

Following that decision, a slew of drug cases were dismissed in circuit courts around the state. One circuit court judge in Miami-Dade County threw out 39 felony drug cases while another circuit court judge in Manatee County threw out 46 cases. These dismissals prompted appeals which culminated in the Florida Supreme Court’s hearing of the issue in the case of State v. Adkins.

In a 5-2 opinion delivered last Thursday, the Florida Supreme Court overturned the Twelfth Judicial Circuit Court’s dismissal of 46 cases and held the amended Florida drug law is constitutional on its face and that the lack of guilty knowledge by offenders can only be used as an affirmative defense -- meaning defendants themselves have the burden of proof in showing that they did not knowingly possess or deliver a controlled substance. The Court stated that the amended portions of the drug law “rationally related to the Legislature’s goal of controlling substances that have a high potential for abuse, and the statutes do not interfere with any constitutionally protected rights.”

The Court’s analysis centers on its belief that since “controlled substances are valuable, common sense indicates that they are generally handled with care.” That belief leads the Court to reason that unknowingly possessing such substances is an exceedingly rare occurrence, and that the amended portions of the Drug Abuse Prevention and Control Act permitting defendants to use the mens rea element as an affirmative defense basically operates as an easily usable safety valve for those who in fact unknowingly possessed or delivered controlled substances.

The Florida Supreme Court’s opinion is certainly a blow to the many defendants who have had their drug cases dismissed, those petitioning to have their drug convictions overturned since the opinion issued by Judge Scriven last year, and criminal justice reform advocates. This decision by the Court, which will make it easier for the state to convict and obtain guilty pleas of those arrested for distributing and possessing controlled substances (even unknowingly) is based on flawed reasoning well elucidated by Justice Perry in his dissent.

Justice Perry rightly points out how the most basic “acts of possession and delivery are part of daily life.” Whether it is handing a friend a dollar or a cup of coffee, carrying luggage on and off public transportation, hauling grocery and shopping bags in and out of stores, or carrying purses, backpacks, and briefcases in places like schools and offices, these examples just show how ripe the chances are for third parties to potentially plant or slip a controlled substance into the property of another without them ever being aware. These scenarios make it plain that the amended law does not seek to punish drug traffickers who possess and deliver narcotics. Rather, by removing the mens rea element, the law punishes anyone who delivers such substances regardless of whether it is done intentionally, unknowingly, inadvertently, or willfully.

Moreover, the idea that the affirmative defense allowing a defendant to show lack of a guilty mind is a simple burden to meet is misguided as well. The concept of innocent until proven guilty is the foundation of our criminal law. Yet, as the dissent notes, the affirmative defense the majority finds perfectly adequate “is hardly a friendly opportunity; rather, it is an onerous burden that strips defendants—including genuinely innocent defendants—of their constitutional presumption of innocence.” Innocent offenders who seek to use the affirmative defense are starting from a position wherein they are presumed guilty. They then lose “their right to simply deny the charges and hold the State to its burden of proving them guilty beyond a reasonable doubt.”

Just imagine a situation in which someone is given a prescription painkiller and told it is an over the counter pill, like ibuprofen, or a high school that every so often conducts drug dog searches of classrooms. Alerted to the search and in an attempt to hide drugs in their possession, a classmate places a controlled substance into the backpack of another student, unbeknownst to her. The drug dogs are alerted to the backpack and the drugs are found. Now, under these two examples, both the person who was given the pill and the student whose bag the drugs were found in are basically guilty because the elements of the statute are simply: (1) the contraband is illicit; and (2) the illicit substance was actually possessed.

This puts the supposed offender in a position of either pleading guilty to a crime she did not knowingly commit and believe to be truly innocent of, or go to trial and use the affirmative defense of lack of knowledge whereby she essentially starts from a position of being presumed guilty. It should be plain that both of these are wholly unattractive options -- but this is exactly the kind of unintended consequence and perverse incentive that is a reality under Florida’s drug law.

Despite the unfavorable decision by the Florida Supreme Court for criminal defendants, basic common-sense fairness in the administration of justice, and the centuries old core principles that underlie our criminal law, not all is lost. The Court only held that the drug law is facially constitutional, meaning that on its face the law is not always unconstitutional. This leaves open the possibility of a future, as-applied challenge to the law, which contends that a particular application of the statute is unconstitutional -- something like the "drug dog school search" example above.

In addition, the Shelton case -- which the U.S. District Court for the Middle District of Florida favorably decided last year and kicked off all state court action regarding this issue -- already ascended to the 11th Circuit U.S. Court of Appeals. Oral arguments were heard back in May and the decision in that case could play a role in the future of Florida’s drug statute as well. Plus, there is always a possibility of an appeal to the Supreme Court of the United States for a final resolution.

The power prosecutor’s hold over criminal defendants has been rapidly expanding for decades now -- with mandatory minimum laws as the primary culprit. Continuous growth in the disparity in bargaining power against criminal defendants and in favor of the state is a serious cause for concern. And the Florida legislature’s elimination of the mens rea element in the state’s drug law and the Florida Supreme Court’s decision to uphold the constitutionality of the statute are no different. In our adversarial system of justice the burden of proof is supposed to be on the government to prove guilt beyond a reasonable doubt -- not for criminal defendants to make an affirmative showing of innocence.