Sunday, July 31, 2011

Federal court tosses "atavistic and repugnant" Florida drug laws for lack of mens rea element

Holy Crap! If it were April 1 I'd be certain this was a joke. Check out this amazing news out of Florida, as reported by John Schwarz at the New York Times:
A federal judge in Orlando on Wednesday declared the state’s controlled-substances laws unconstitutional. A 2002 Florida law eliminated the requirement of a “guilty mind,” or “mens rea,” as part of a drug offense. Briefs attacking the Florida law, in which a defendant need not know that a substance is illegal to be convicted of possessing or selling it, had been filed by groups including the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and dozens of law professors. Judge Mary S. Scriven of Federal District Court threw out the drug delivery charges against Mackle Vincent Shelton, and ordered a new sentencing hearing on other charges. Florida’s unique law expressly eliminating mens rea for drug offenses, the judge wrote, is “atavistic and repugnant to the common law.” The state is expected to appeal the decision, which could leave hundreds, if not thousands, of convictions in question and affect pending cases. 
Here's the opinion (pdf) While Florida's law appears to have been especially egregious, if the feds actually began to require a stronger mens rea element in all state and federal statutes - not just drug laws but a massive array of government dicta on as many subjects as one may imagine - it would transform the modern legal system for the better. A recent Wall Street Journal story (mentioned briefly in this Grits post) lamented the lack of a mens rea component in many recent federal laws:
Some of these new federal statutes don't require prosecutors to prove criminal intent, eroding a bedrock principle in English and American law. The absence of this provision, known as mens rea, makes prosecution easier, critics argue.

A study last year by the Heritage Foundation and the National Association of Criminal Defense Lawyers analyzed scores of proposed and enacted new laws for nonviolent crimes in the 109th Congress of 2005 and 2006. It found of the 36 new crimes created, a quarter had no mens rea requirement and nearly 40% more had only a "weak" one.

Some jurists are disturbed by the diminished requirement to show criminal intent in order to convict. In a 1998 decision, federal appellate judge Richard Posner, a noted conservative, attacked a 1994 federal law under which an Illinois man went to prison for three years for possessing guns while under a state restraining order taken out by his estranged wife. He possessed the guns otherwise legally, they posed no immediate threat to the spouse, and the restraining order didn't mention any weapons bar.

"Congress created, and the Department of Justice sprang, a trap" on a defendant who "could not have suspected" he was committing a crime, Judge Posner wrote.
The notion of mens rea is the flip side of the old saying, "Igorance of the law is no excuse." The latter sentiment may be technically true, but for example, after this legislative session Texas now has more than 3,000 felonies on the books (the Board of Pardons and Paroles will issue the exact count later this year). There are another 3-4,000 (often redundant) federal felonies, along with countless misdemeanors, myriad state and federal regulations, and a vast patchwork of municipal ordinances. Taken together, there's not an attorney in the land who knows what they all are, much less any average citizen. Ignorance may be no excuse, but prosecuting and punishing people for "wrongdoing" where there was no criminal intent, no victim, etc., turns the criminal justice system into a Kafkaesque joke.

Criminal law is best suited for cases with criminal intent, not accidents or mistakes, what used to be termed "torts." Civil suits serve a legitimate purpose in resolving non-criminal disputes, but tort reform, mandatory arbitration, etc., have placed a burdensome yoke on the ability of civil courts to administer justice. So increasingly, people instead seek justice in criminal courts, with accidents and mistakes now more frequently criminalized instead of just incurring civil liability. The increasingly radical limitation of civil law over recent years created a vacuum which was eagerly filled by cops, courts, and an array of special interests seeking to create their own specialized crimes and related punishments. The diminished role of civil law as a cause of overcriminalization was briefly addressed in the WSJ article:
Another area of concern among some jurists is the criminalization of issues that they consider more appropriate to civil lawsuits. In December, the Ninth Circuit Court of Appeals, which is considered liberal, overturned the fraud conviction of a software-company executive accused of helping to issue false financial statements. The government tried "to stretch criminal law beyond its proper bounds," wrote the Circuit's chief judge, Alex Kozinski.

Civil law, he said, is a better tool to judge "gray area" conduct—actions that might, or might not, be illegal. Criminal law, he said, "should clearly separate conduct that is criminal from conduct that is legal."
In the Florida case, the court called the lack of a mens rea requirement "atavistic and repugnant to the common law." Will this decision signal the beginning of a new reevaluation of mens rea by the federal courts, or will it turn out to be a one-off, non-replicable tactic ill-suited for challenging other strict-liability crimes? Time will tell, but it's a subject ripe for more open and honest discussion.

Meanwhile, imagine the mess officials must now thrash out in Florida if the decision stands: Are old convictions invalid? Must new charges be dropped? Is the state liable to the accused for arresting, prosecuting and punishing under an unconstitutional law? ¿Quien sabe? What a zoo this could become for the Sunshine State!

MORE: From the Wall Street Journal Law Blog, Simple Justice, Constitutional Law Prof Blog, and Josh Blackman's Blog.


Anonymous said...

Interesting decision and one I generally support but I will pass on the California decision as expressed in the WSJ article. White collar criminals have historically beaten the system for a variety of reasons ("Hey, these guys are just like us", etc.) but their crimes are greater than the average street criminals. Being robbed by paper games still takes dollars from my pocket and it takes YEARS, if ever to sue the thief and the company that condoned his behavior - besides having the company lawyers representing him while you and I can only afford the 'JD in a Box' solicitor. Enron and their ilk belong behind bars as much as any bank robber. Restraint of trade, kickbacks and bribes, the lies of advertising, and corporate unfair labor practices all need to be addressed criminally for they do much more damage to our community than almost any 'ordinary' criminals' actions - and believe me they do not lack any mens rea when they manipulate the bottom line of a company paying their salary and bonus. :~)

Don said...

Scott, I notice you said Texas had over 3,000 felonies on the books. The figure I have seen on Grits in the past has been something like 2380, (not counting this session). Was this a typo? Or has something changed in the count? Not that it matters all that much. Whether it's 2000 or 3000, it's still ridiculous.

Anonymous said...

"a defendant need not know that a substance is illegal to be convicted of possessing or selling it..."

These drug dealers don't know what they are selling. If they knew it was illegal do you think they would be selling it?

Texas Maverick said...

Grits, another opportunity to spend my morning searching for explanations of things I will probably never reason to apply. It does give me hope reading this opinion. Our 3-legged stool of govt checks and balances does work. I might send this link to my state rep. in hopes he will be more thoughtful as he considers some of the "bad" legislation that is filed. thx for bring to our attention.