News Release

Appeals Court to Decide Constitutionality of Florida's Drug Laws

Washington, DC (November 2, 2011) – A diverse group of organizations and law professors concerned about the elimination of intent requirements in criminal statutes are urging the Eleventh Circuit Court of Appeals to affirm U.S. District Court Judge Mary Scriven’s July ruling that Florida’s law prohibiting possession, sale or delivery of controlled substances is “unconstitutional on its face.” 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, the Cato Institute, the Reason Foundation, the Libertarian Law Council, and 38 professors submitted a joint amicus curiae, or friend of the court, brief on Monday 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 Clauses of the Fifth and the Fourteenth Amendments to the U.S. Constitution and is inconsistent with centuries of common law. Indeed, as U.S. District Court Judge Mary Scriven observed in her opinion finding the law unconstitutional on its face, “Florida stands alone in its express elimination of mens rea as an element of a drug offense.”

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. We are optimistic that the Eleventh Circuit Court of Appeals will look to U.S. Supreme Court precedent and affirm the district court’s ruling.”

The brief was submitted by Tampa attorney and NACDL Board member Todd Foster, and Miami Attorney and NACDL’s Amicus Curiae Committee Vice Chair David O. Markus. The main author was Ivan J. Dominguez, Deputy Director of Public Affairs & Communications. In addition, Executive Director Norman L. Reimer, Champion Editor Quintin Chatman, Director of Public Affairs & Communications Jack King, and White Collar Crime Policy Counsel Tiffany M. Joslyn participated in the preparation of the brief.

A copy of the brief is available on NACDL’s web site here.

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Ivan Dominguez, Deputy Director of Public Affairs & Communications, (202) 465-7662 or

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 many thousands of 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 legal system.