In Florida, You’re Presumed Guilty: Drug 'Crimes'
With No Criminal Intent
William Norman Grigg
Recently by William Norman Grigg: Sandra
Cortez’s Ordeal: Once You’re On the 'List,' You Can’t Get Off
Thanks to a
state Supreme Court ruling effectively disposing of the need
for prosecutors to prove criminal intent, the Florida state government
can continue imprisoning people for possessing substances they didn’t
know were illegal.
one of two states (the other is Washington) afflicted with drug
possession statutes that don’t require the government to prove criminal
intent. The statute permits defendants to offer an affirmative defense
of "unwitting possession" – which means that the defendant,
not the state, has the burden of proof. The
state Supreme Court, ruling the recent case of Florida v. Adkins,
has rejected a challenge to that statute filed on behalf of dozens
of defendants awaiting trial on drug possession charges.
is no constitutional right to possess contraband," insisted
Justice Charles Canady in the majority opinion. "Nor is there
a protected right to be ignorant of the nature of the property in
Like most rulings
of this kind, Canady’s opinion begins with the totalitarian premise
that the powers exercised by government are presumptively constitutional
– and that it is the actions of the individual that must be justified.
This inverts the American perspective on law, in which government
can exercise only those powers explicitly delegated to it in the
applicable constitution (state or federal).
Since the repeal
of the 18th Amendment, there has been no constitutional
provision authorizing the federal government to regulate the possession
or consumption of mood-altering substances. The Florida state constitution
is similarly devoid of such provisions. Thus there is no constitutional
authority for Florida officials to prosecute people for possession
of such substances.
Even if the
Florida state government had the authority to criminalize drug possession,
the statute dealt with in this ruling would be illegitimate because
it doesn’t require the state to prove the existence of mens
rea – malicious intent on the part of the accused.
In order for
an act to be a crime, it must involve the deliberate violation of
a clear and intelligible statute by an act that inflicts injury
to another person. Individual drug consumption – although unwise
– doesn’t injure anybody else; as a victimless act, it cannot be
construed as a crime. The same is true of mere possession of narcotics,
which – as the Florida statute acknowledges – doesn’t even necessarily
involve criminal intent.
Under the Florida
v. Adkins ruling, however, people can be convicted of a supposed
crime on the basis of mere physical proximity to contraband they
didn’t know was on their property or among their personal effects.
In his dissent,
Justice James E.C. Perry points out that the standard embraced by
the court would permit the prosecution and imprisonment of "a
letter carrier who delivers a package containing unprescribed Adderall;
a roommate who is unaware that the person who shares his apartment
has hidden illegal drugs in the common areas of the home; a mother
who carries a prescription pill bottle in her purse, unaware that
the pills have been substituted for illegally obtained drugs by
her teenage daughter, who placed them in the bottle to avoid detection
… a driver who rents a car in which a past passenger accidentally
dropped a baggie of marijuana under the seat; a traveler who mistakenly
retrieves from a luggage carousel a bag identical to her own containing
Oxycodone; a helpful college student who drives a carload of a friend’s
possessions to the friend’s new apartment, unaware that a stash
of heroin is tucked within those possessions; [or] an ex-wife who
is framed by an ex-husband who planted cocaine in her home in an
effort to get the upper hand in a bitter custody dispute."
opinion blithely dismissed these possibilities – at least some of
which have been validated through actual court experience – by insisting
that the statute’s "affirmative defense" provision addresses
the rights of the defendant. As Justice Perry observes, this violates
common law principles – traceable to ancient Roman law – by forcing
the defendant to overcome a presumption of guilt:
the majority’s decision … the innocent will from the start be presumed
guilty. The innocent will be deprived of their right to simply deny
the charges and hold the State to its burden of proving them guilty
beyond a reasonable doubt. The innocent will instead be forced to
assert an affirmative defense, whereupon 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….. The innocent will then have no realistic choice
but to shoulder the burden of proof and present evidence to overcome
that presumption…. The innocent will then hear their jury instructed
on the permissive presumption that they knew of the illicit nature
of the substance in question."
upheld in the Adkins ruling is involved in roughly one
third of all felony charges in Palm Beach County. Peter Antonacci,
State Attorney for Palm Beach County, expressed relief over the
ruling. "It would have been a substantial mess if had gone
the other way," he
told the Palm Beach Post, in apparent ignorance of
his implicit admission that his office is responsible for imprisoning
a great number of people who had done nothing to harm anybody else.
from Republic Magazine
with permission from the author.
Norman Grigg [send him mail]
publishes the Pro
Libertate blog and hosts the Pro
Libertate radio program.
© 2012 William Norman Grigg
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