RESTORE DUE PROCESS TO DRUG CASES

Due process should not be tossed aside for the sake of expediency. Yet
Florida state courts are doing just that by upholding drug convictions
despite a recent finding by a federal judge that a key state drug law
is unconstitutional.

U.S. District Judge Mary Scriven of the Middle District ruled in July
that Florida's statute making possession and delivery of an illicit
substance a crime is constitutionally flawed and violates due process
protections. But state courts have barely noticed. Miami-Dade's 3rd
District Court of Appeal joined many other state courts recently in
upholding the law.

In December, the Florida Supreme Court will hear State of Florida vs.
Luke Jarrod Atkins, et al., which consolidates dozens of cases of
defendants charged with drug-related crimes. Atkins is an appeal of a
September ruling by Manatee Circuit Judge Scott Brownell which
dismissed the drug charges against the defendants, declaring the
state's drug law an unconstitutional violation of due process. The
justices may look for ways to avoid upsetting nearly 10 years of drug
convictions, but the high court has a responsibility to enforce due
process even when it's inconvenient.

A basic tenet of criminal law is that the state can only find a person
guilty of a crime that he or she intended to commit. While there are
some exceptions to this "mens rea" requirement, it protects people
from being found criminally liable for innocent conduct.

Florida's law criminalizing possession of an illicit controlled
substance didn't include this intent element. To salvage the law, the
Florida Supreme Court read the "guilty knowledge" requirement into it
through a jury instruction. Juries were required to find that
defendants knew of the illicit nature of the substances in their
possession before declaring them guilty. Otherwise people who
legitimately thought they carried baking soda that turned out to be
cocaine could be convicted of a serious offense.

But in 2002, in an effort to make drug prosecutions easier, state
lawmakers repealed the required intent established by the Florida
Supreme Court. Scriven's ruling noted that Florida is the only state
in the nation that expressly eliminated mens rea as part of a felony
drug offense. She called it a "draconinan and unreasonable
construction" of the law, and noted that anyone unknowingly
transporting illicit drugs, such as a commercial transport worker,
could be found criminally liable.

The state claims the Legislature has the power to determine the
elements of a crime - even writing an intent requirement out of law -
and points out that defendants may claim as a defense that they didn't
know the illicit nature of the substance. But asking the accused to
demonstrate their innocence on an essential aspect of an offense is
not how the law is supposed to work.

This mess is of the Legislature's making, but there is an easy fix.
Sen. Ellyn Bogdanoff, R-Fort Lauderdale, has introduced SB 732 that
would, among other reforms, effectively return an intent requirement
to the law. The Legislature should pass the bill. Any disruption that
results from upholding due process is the fault of the earlier
decision by lawmakers to dispense with constitutional rights to make
drug-related convictions easier to obtain.