News Release ~ 01/31/2011

Florida’s Strict Liability Felony Drug Laws Under Attack

Washington, DC (January 31, 2011) – A diverse group of organizations and law professors concerned about the elimination of intent requirements in criminal statutes are urging a federal court to declare Florida’s law prohibiting possession, sale or delivery of controlled substances unconstitutional. The National Association of Criminal Defense Lawyers (NACDL), the Florida Association of Criminal Defense Lawyers, the American Civil Liberties Union of Florida, the Drug Policy Alliance, the Calvert Institute for Policy Research, and 38 professors from 27 different U.S. law schools submitted a joint amicus curiae, or friend of the court, brief on Friday in support of a habeas petitioner who is serving an 18-year sentence under Florida’s strict liability felony drug law.

The petitioner, Mackle Vincent Shelton, was convicted of delivery of a controlled substance. The jury was instructed that “to prove the crime of delivery of cocaine, the state must prove the following two elements beyond a reasonable doubt: that Mackle Vincent Shelton delivered a certain substance; and, that the substance was cocaine.” The State did not have to prove that he knew he was doing anything wrong. Indeed, with no intent requirement, a Federal Express delivery person who unknowingly delivers a parcel containing a controlled substance, would be presumed a felon under Florida’s drug law. Such a criminal statute runs afoul of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and is inconsistent with centuries of common law, sound public policy, and the norms of international legal systems and principles generally embraced by the United States.

Mr. Shelton’s appointed counsel in this matter, James E. Felman of Kynes, Markman & Felman, P.A. in Tampa, Fla., explained the importance of his client’s case, “I feel privileged to have the opportunity to present this due process challenge to Florida''s strict liability drug statutes. If these statutes, permitting life imprisonment without any proof of criminal intent, can pass constitutional muster, it is difficult to see what constitutional lines could be left to draw between the present and Mr. Orwell''s vision of the future."

NACDL Executive Director Norman L. Reimer highlighted the significance of this matter in the context of the general erosion of the intent requirement in criminal law. “The nation has been drifting away from the moral anchor of a clearly defined intent requirement in its criminal laws. What Florida has done with its drug laws will sink the ship.”

The brief was submitted by Tampa attorney and NACDL member Todd Foster, and Miami Attorney and NACDL’s Amicus Curiae Committee Vice Chair David O. Markus. The Court granted amici’s motion for leave to file the brief on Monday, January 31, 2011.

A copy of the brief is available on NACDL’s web site at:
http://www.nacdl.org/public.nsf/newsissues/amicus_attachments/$FILE/Shelton_Amicus.pdf 

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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