STATE DRUG TRAFFICKING LAWS RULED UNCONSTITUTIONAL

PANAMA CITY -Florida is the only state in America with drug
trafficking laws that don't require prosecutors to prove a defendant
actually knew they were trafficking drugs, but all that could change
in the wake of a ruling by a federal judge in Orlando last month.

Calling the Florida Drug Abuse Prevention and Control Act "draconian,"
U.S. District Court Judge Mary Scriven found the law "is
unconstitutional on its face" because it imposes severe penalties
without requiring evidence the defendant knew they were trafficking
drugs.

State courts are not bound by Scriven's opinion, but it's persuasive,
said Bob Jarvis, a constitutional law professor at the Shepard Broad
Law Center at Nova Southeastern University. A state court judge in
Miami threw out cases against 39 defendants Wednesday based on
Scriven's order, but stayed the order a week to give prosecutors a
chance to appeal.

"It's a good opinion, but it's just one opinion," Jarvis said. "The
law is still in existence; it has not been struck down."

When it comes to convicting drug trafficking suspects Florida
prosecutors have it easy, Jarvis said.

In 2002, the Florida Supreme Court made a ruling that interpreted the
Legislature intended for prosecutors to prove intent of suspects when
it created Florida's drug trafficking statute. Proving a defendant's
intent is a staple of American criminal law, but there are some
crimes, called strict liability offenses, where intent need not be
proved.

A statutory rape conviction, for instance, doesn't hinge upon whether
a defendant was aware of the age of the person he or she slept with,
Jarvis said. But compared to Florida's drug laws, which often attach
lengthy mandatory minimum sentences, the penalties and stigmas
associated with every other strict liability offense are mild, Jarvis
said.

Prosecutors statewide got an advantage later in 2002 when, in response
to the high court's ruling, the Legislature rewrote the law, clearly
stating there should be no requirement to prove intent in drug
trafficking cases, but a defendant could argue a lack of intent as a
valid defense.

The Legislature, in effect, took the burden of proof away from the
state and put it on the defendant, according to one state court
interpretation. "Taking that burden off of Florida prosecutors has
really changed criminal law," Jarvis said.

"There are lots of ways to prove intent," Jarvis said. That's why
"prosecutors in 49 other states and the District of Columbia are able
to put people in jail for drug trafficking."

The question for society and the Legislature, as Jarvis sees it, will
be this:

"Do you think that drug crimes are so heinous that you're willing to
go against," the vast majority of criminal law?

The Legislature that changed the law in 2002 was "extremely
conservative," Jarvis said, but not as conservative as the current
Legislature.