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It is one thing to unwittingly slide down a slippery slope, it is another to deliberately plunge headlong into the abyss. But when it comes to the increasing tendency to limit intent requirements in the criminal law, Florida has taken that plunge with utter abandon.
Last May, NACDL and The Heritage Foundation published a groundbreaking report, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law.1 The report focuses on shoddy lawmaking that is systematically diminishing the criminal intent requirement – a moral anchor of the American criminal justice system. The notion that a person accused of crime is presumed innocent and should not be punished unless the state can prove that the person acted with criminal intent is inherent in the American system of justice. Not so in Florida.
Several years ago, Florida enacted a statute that eliminated the intent requirement from drug possession and distribution laws. Under this law a person could be convicted of some of the most serious crimes under the law, carrying severe terms of imprisonment, and the state would not have to prove that the person acted with knowledge or intent. These schemes have been tried before, and typically courts apply a doctrine of constitutional avoidance, finding an implicit intent requirement in the law in order to avoid declaring it unconstitutional. That’s what happened in Florida – at least initially.
In a case involving cocaine possession,2 the Florida Supreme Court found that the elimination of an intent requirement would “make criminals out of people who were wholly ignorant of the offending characteristics of items in their possession, and subject them to lengthy prison terms.” Thus, if the statute were read strictly without an intent requirement, it “would render criminal a mail carrier’s unknowing delivery of a package which contained cocaine.”3 Accordingly, the court held that notwithstanding the apparent elimination of an intent requirement, the state must still prove that the defendant knew of the illicit nature of the substance possessed. Several years later, the Florida Supreme Court reaffirmed its earlier decision in a case involving the prosecution of a man for introduction or possession of a controlled substance in a correctional facility.4
But the Florida Legislature was not to be trumped. In 2002, it explicitly overruled the State Supreme Court by enacting a statute that specifically found that the decisions holding “that the state must prove that a defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.”5 The legislation also specified that knowledge of the illicit nature of a controlled substance is not an element of a drug possession or distribution charge. Rather, it assigned to the accused the duty to establish lack of knowledge as an affirmative defense. To be clear, this bold move, which is virtually unheard of in American law, subjects innocent actors to penalties that in some circumstances can include life imprisonment.6
Enter Mackle Vincent Shelton. In 2005, Mr. Shelton was convicted and sentenced to 18 years imprisonment for distributing cocaine with a value between $20 and $30. Under the crime of conviction, he was facing a maximum of 15 years, but the maximum was doubled and augmented by a 10-year mandatory minimum under Florida’s repeat offender laws. For some offenders, the sentence could have been life. At his trial, the members of Mr. Shelton’s jury were simply told that they had to convict if he delivered the substance and the substance was drugs. There was no instruction that the jury find knowledge or intent. Not surprisingly, given the legislature’s smack-down of the Florida Supreme Court, Mackle Shelton’s challenge to the elimination of an intent requirement was rejected by the Florida courts. And so, acting pro se, he brought a petition for a writ of habeas corpus in the federal court.
On September 7, the U.S. District Court in Tampa, Fla., assigned counsel to represent Mr. Shelton and invited briefing on whether Florida’s abrogation of a mens rea requirement in drug offenses is unconstitutional under the U.S. Constitution.7 On January 29, 2011, NACDL filed an amicus curiae brief urging the court to strike down the statute.8 NACDL’s brief was joined by several other amici, including 38 law professors from 12 states and the District of Columbia.9 Amici contend that the evisceration of an intent requirement for a crime that carries severe punishment violates the Due Process Clause and is a radical departure from a core underpinning of the American justice system. The principle that individuals should not be punished unless they act with a culpable mental state can be traced back to the 13th century and was a well-established principle in Anglo-American jurisprudence years before the American Revolution.10 It resonates today in some of the most important international human rights treaties recognizing that strict or absolute liability in a criminal context is a violation of the right to a fair trial.11
The Shelton case is an important test for due process and for the broad coalition with which NACDL collaborates in an effort to rein in overcriminalization. It matters not whether the precedent arises in a white collar case or a white powder case – a criminal intent element is essential to justice. Brian Walsh, Senior Policy Fellow at The Heritage Foundation and co-author of Without Intent, recently criticized the actions of the Florida Legislature as “a grave and fundamental error” and noted that laws that enable the government to convict and punish individuals who act without criminal intent “invite abuse and injustice.”12 The nation has been drifting away from the moral anchor of a clearly defined intent requirement for some time. What Florida has done with its drug law threatens to sink the ship. That is why NACDL views Shelton as a critical opportunity to halt a profoundly disturbing trend in America’s criminal law.
Amici on the brief:
National Association of Criminal Defense Lawyers
Florida Association of Criminal Defense Lawyers
American Civil Liberties Union of Florida
Drug Policy Alliance
Calvert Institute for Policy Research
Thirty-eight professors* signed the brief as co-amici:
Bridgette Baldwin, Western New England College School of Law, Springfield, MA
Ricardo J. Bascuas, University of Miami School of Law, Coral Gables, FL
Caroline Bettinger-López, University of Miami School of Law, Coral Gables, FL
Guyora Binder, University at Buffalo Law School, Buffalo, NY
Jennifer Blasser, Benjamin N. Cardozo School of Law, New York, NY
Vincent M. Bonventre, Albany Law School, Albany, NY
Tamar R. Birckhead, University of North Carolina School of Law, Chapel Hill, NC
Darryl K. Brown, University of Virginia School of Law, Charlottesville, VA
Paul Butler, The George Washington University Law School, Washington, DC
Michael Cahill, Brooklyn Law School, Brooklyn, NY
Matthew H. Charity, Western New England College School of Law, Springfield, MA
Lucian E. Dervan, Southern Illinois University School of Law, Carbondale, IL
William V. Dunlap, Quinnipiac University School of Law, Hamden, CT
Sally Frank, Drake University Law School, Des Moines, IA
Monroe H. Freedman, Hofstra University School of Law, Hempstead, NY
Bennett L. Gershman, Pace Law School, White Plains, NY
Andrew Horwitz, Roger Williams University School of Law, Bristol, RI
Babe Howell, CUNY School of Law, Flushing, NY
Renée Hutchins, University of Maryland School of Law, Baltimore, MD
John D. King, Washington & Lee University School of Law, Lexington, VA
Jeffrey L. Kirchmeier, CUNY School of Law, Flushing, NY
Richard Daniel Klein, Touro College Jacob D. Fuchsberg Law Center, Central Islip, NY
Kelly S. Knepper-Stephens, The George Washington University Law School, Washington, DC
Alex Kreit, Thomas Jefferson School of Law, San Diego, CA
Donna Hae Kyun Lee, CUNY School of Law, Flushing, NY
Mary A. Lynch, Albany Law School, Albany, NY
Dan Markel, Florida State University College of Law, Tallahassee, FL
Ellen S. Podgor, Stetson University College of Law, Gulfport, FL
Martha Rayner, Fordham University School of Law, New York, NY
Ira P. Robbins, American University Washington College of Law, Washington, DC
Jenny M. Roberts, American University Washington College of Law, Washington, DC
Ronald Rotunda, Chapman University School of Law, Orange, CA
Stephen A. Saltzburg, The George Washington University Law School, Washington, DC
William A. Schroeder, Southern Illinois University School of Law, Carbondale, IL
Michael L. Seigel, University of Florida Levin College of Law, Gainesville, FL
Laurie Shanks, Albany Law School, Albany, NY
Rodney Uphoff, University of Missouri School of Law, Columbia, MO
Ellen C. Yaroshefsky, Benjamin N. Cardozo School of Law, New York, NY
*The professors signed the brief in their individual capacity as legal educators and not on behalf of any institution, group or association.
Notes
1. The report is available at http://www.nacdl.org/withoutintent;
Norman L. Reimer, Inside NACDL, THE CHAMPION, May 2010 at 9; BRIAN W.
WALSH & TIFFANY M. JOSLYN, NAT’L ASS’N OF CRIMINAL DEF. LAWYERS,
WITHOUT INTENT: HOW CONGRESS IS ERODING THE CRIMINAL INTENT REQUIREMENT
IN FEDERAL LAW (2010).
2. FLA. STAT. § 893.13(1)(f) (1991), subsequently codified at FLA. STAT. § 893.13(6)(a) (1995).
3. Chicone v. State, 684 So. 2d 736, 743 (Fla. 1996).
4. Scott v. State, 808 So. 2d 166 (Fla. 2002).
5. See FLA. STAT. § 893.101 (2002).
6. A noted commentator observes that “[i]t is rare if ever that the
legislature states affirmatively in a statute that described conduct is a
crime though done without fault.” WAYNE R. LAFAVE, 1 SUBSTANTIVE
CRIMINAL LAW § 5.5(a) (2d ed.)
7. James E. Felman, a prominent Tampa attorney and longtime NACDL member, was appointed to represent Mr. Shelton.
8. The brief, which was submitted under the auspices of Amicus Committee
Vice Chair David Oscar Markus and NACDL Board Member Todd Foster, of
Cohen, Forster & Romaine PA, was authored by NACDL staff attorneys
Quintin Chatman, Ivan J. Dominguez, Tiffany M. Joslyn, Jack King,
Michael Price, Shana-Tara Regon, and myself.
9. A copy of the brief is available on NACDL’s website at http://www.nacdl.org/public.nsf/newsissues/amicus_attachments/$FILE/Shelton_Amicus.pdf.
10. Blackstone’s Commentaries, which were a staple in courtrooms and law
offices throughout the colonies, summarizes the importance of an intent
element: “Indeed, to make a complete crime, cognizable by human laws,
there must be both a will and an act. … And, as a vicious will without a
vicious act is no civil crime, so on the other hand, an unwarrantable
act without a vicious will is no crime at all.” 4 WILLIAM BLACKSTONE,
COMMENTARIES *20-21 (1769).
11. See International Covenant on Civil and Political Rights (ICCPR),
the European Convention on Human Rights (ECHR), and the American
Convention on Human Rights (ACHR).
12. Brian Walsh, Overcriminalization: Attacking a Dangerous Precedent, The Foundry Blog (Heritage Foundation), Feb. 4, 2011, http://blog.heritage.org/?p=51714 (last visited Feb. 8, 2011).
