Inside NACDL: Focus on Florida: A Report and a Case Expose a Flawed Justice System

Focus on Florida: A Report and a Case Expose a Flawed Justice System Norman L. Reimer Inside NACDL September 2011 7 Some sunlight on the criminal justice system in the Sunshine State recently exposed deep flaws and pervasive injustice. In the span of one week in July, a report and a federal court dec

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Some sunlight on the criminal justice system in the Sunshine State recently exposed deep flaws and pervasive injustice. In the span of one week in July, a report and a federal court decision illuminated systemic injustice in the criminal courts and an unprecedented self-inflicted assault on one of the most basic principles in American justice. NACDL played a key role in both.

On July 21, 2011, NACDL released Three-Minute Justice: Haste and Waste in Florida’s Misdemeanor Courts.1 The report, which was authored by Alisa Smith and Sean Maddan, professors in the Department of Criminology and Criminal Justice at the University of Tampa, studied the operation of misdemeanor courts in 21 counties throughout the state.2 Nearly half a million people, or approximately three percent of the adults in the nation’s third most populous state, pass through these courts every year. The findings are nothing less than shocking. It turns out that these courts are conviction mills, where due process consistently takes a back seat to case processing. 

The average arraignment proceeding lasted only 2.93 minutes, with more than 80 percent taking three minutes or less and 91 percent completed within five minutes.3 Worse, 66 percent of the accused misdemeanor offenders did not have counsel and almost 70 percent pleaded guilty or no contest.4 Not surprisingly, those in custody were more likely to enter a guilty plea at the arraignment than released defendants. 

An especially disturbing finding was that those appearing without counsel rarely received adequate advice concerning their rights and the profound consequences that can result from a conviction. Often defendants were only given cursory explanations concerning their rights either en masse, or with pre-printed forms that presumed waiver of the right to counsel and a guilty or no contest plea. Sometimes accused individuals were advised of their rights by video.6 While judges failed to advise unrepresented persons of their right to counsel “only” 27 percent of the time, judges only asked these defendants if they wanted counsel less than half of the time, and only one-third of the time did the trial judge discuss the importance and benefit of counsel.7 Incredibly, in some jurisdictions, an indigent accused person must pay an application fee in order to be considered for the appointment of counsel. 

In an era in which the Supreme Court has recognized that the failure of counsel to advise a client of immigration consequences may constitute constitutionally deficient representation,8 these pervasive practices are shocking and deplorable. In a foreword to the report, former Florida Chief Justice Gerald Kogan wrote that “[i]t is as if our criminal and traffic courts operate as ‘constitution-free zones,’ outside the law.” 

Of course, there is no reason to believe that Florida’s misdemeanor courts are all that aberrational. This study built on NACDL’s earlier national study of misdemeanor courts throughout the country, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts. The earlier report found that throughout the nation misdemeanor courts are swamped with needless criminal prosecutions, generally provide inadequate defense resources, and squander public funds — all the while branding people with life-altering consequences with machine-like efficiency. That report prompted NACDL’s Indigent Defense Committee to initiate the Florida study, anticipating that an in-depth study of a particular state would expose the kind of injustice that just might foment meaningful reform. 

Three-Minute Justice recommends several basic reforms: (1) provide counsel to all accused persons facing misdemeanor charges and the elimination of any fee to secure the right; (2) ensure due process by making certain that all defendants fully understand their rights and the potential consequences of a guilty plea; (3) reduce fines for minor crimes and waive fines for those who cannot pay; (4) create citizen boards that provide oversight and review; and (5) review the Florida criminal code to identify misdemeanors that may be reclassified to non-criminal offenses. Time will tell if policymakers have the will to address the pervasive injustice in Florida’s misdemeanor courts. 

Just six days after the release of Three-Minute Justice, a federal court sternly rebuked another injustice in Florida’s criminal justice system. Readers of this column may recall that in January of this year I discussed the Shelton case, in which NACDL led a broad amicus effort supporting a defendant’s challenge to Florida’s elimination of an intent requirement in drug possession and drug distribution cases.9 I entitled the column “Florida vs. Mens Rea.” I am pleased to report that Mens Rea won. On July 27, 2011, U.S. District Judge Mary S. Scriven held that Florida’s drug statute violates the due process clause and is unconstitutional on its face.10 

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In granting Mackle Shelton’s petition for a writ of habeas corpus, Judge Scriven found that it was unconstitutional to turn drug offenses into strict liability crimes because of the severity of the penalty, the magnitude of the stigma, and the danger that inherently innocent conduct would be criminalized. These three attributes constitute the core of the due process proscription on criminal statutes devoid of an intent requirement. The court also rejected the State’s contention that it was sufficient for due process purposes to afford an accused the opportunity to raise lack of intent as an affirmative defense, as provided in the Florida statute. This approach would subject an innocent actor to “the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty. … He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposes that he does in fact have guilty knowledge.”11 

The court clearly recognized that the Florida drug statute could pave the way to further evisceration of intent requirements: “The court notes with some consternation that if the Florida Legislature can by edict and without constitutional restriction eliminate the element of mens rea from a drug statute with penalties of this magnitude (a prison term ranging from 15 years up to 30 years or life for recidivists), it is hard to imagine what other statutes it could not similarly affect.”12 

The singularly extraordinary effort by the Florida Legislature13 to strip intent requirements from one of the most serious of felony offenses was an extreme example of the trend toward the dilution of intent requirements. This is a subject of preeminent concern for NACDL that was highlighted in a major report issued last year by NACDL and the Heritage Foundation: Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law. The Florida drug statute shows that this phenomenon is not limited to the federal level. But the Shelton decision provides heartening evidence that this is not just an esoteric concern of theoreticians and reformers. It is a palpable challenge to fundamental notions of justice, and the courts are on to it. It remains to be seen whether the Florida Legislature will reverse its flawed approach or whether the decision will be affirmed on appeal. One outcome is certain. A vigorous defense bar is certain to challenge efforts to emasculate the criminal intent requirement — the moral anchor of a criminal justice system.


1. ALISA SMITH & SEAN MADDAN, NAT’L ASS’N OF CRIM. DEF. LAWYERS, THREE-MINUTE JUSTICE: HASTE AND WASTE IN FLORIDA’S MISDEMEANOR COURTS (2011) [hereinafter THREE-MINUTE JUSTICE]. The report is available on NACDL’s website at The report was made possible by generous support from the Foundation for Criminal Justice, the Open Society Institute, and the Ford Foundation.
2. Dr. Smith served as the lead researcher and Dr. Maddan was the primary statistician. They were assisted by a team of students.
3. THREE-MINUTE JUSTICE, supra note 1, at 15.
4. Id.
5. Id.
6. Id.
7. Id.
8. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
9. Norman L. Reimer, Intentionally ‘Without Intent’ – Florida vs. Mens Rea, THE CHAMPION, January/February 2011 at 7.
10. Shelton v. Secretary, Dept. of Corrections, 2011 WL 3236040 (M.D. Fla. July 27, 2011); FLA. STAT. § 893.13.
11. Shelton at *14.
12. Id. at *14, n.12
13. Judge Scriven observed that “Florida became the only state in the nation expressly to eliminate mens rea as an element of a drug offense.” Id. at *1.

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