In Florida, You’re Presumed Guilty: Drug 'Crimes' With No Criminal Intent. by William Norman Grigg

Thanks to a state Supreme Court ruling effectively disposing of the need for prosecutors to prove criminal intent, the Florida state government can continue imprisoning people for possessing substances they didn’t know were illegal.

Florida is one of two states (the other is Washington) afflicted with drug possession statutes that don’t require the government to prove criminal intent. The statute permits defendants to offer an affirmative defense of "unwitting possession" – which means that the defendant, not the state, has the burden of proof.  The state Supreme Court, ruling the recent case of Florida v. Adkins, has rejected a challenge to that statute filed on behalf of dozens of defendants awaiting trial on drug possession charges.

"There is no constitutional right to possess contraband," insisted Justice Charles Canady in the majority opinion. "Nor is there a protected right to be ignorant of the nature of the property in one’s possession."

Like most rulings of this kind, Canady’s opinion begins with the totalitarian premise that the powers exercised by government are presumptively constitutional – and that it is the actions of the individual that must be justified. This inverts the American perspective on law, in which government can exercise only those powers explicitly delegated to it in the applicable constitution (state or federal).

Since the repeal of the 18^th Amendment, there has been no constitutional provision authorizing the federal government to regulate the possession or consumption of mood-altering substances. The Florida state constitution is similarly devoid of such provisions. Thus there is no constitutional authority for Florida officials to prosecute people for possession of such substances.

Even if the Florida state government had the authority to criminalize drug possession, the statute dealt with in this ruling would be illegitimate because it doesn’t require the state to prove the existence of mens rea – malicious intent on the part of the accused.

In order for an act to be a crime, it must involve the deliberate violation of a clear and intelligible statute by an act that inflicts injury to another person. Individual drug consumption – although unwise – doesn’t injure anybody else; as a victimless act, it cannot be construed as a crime. The same is true of mere possession of narcotics, which – as the Florida statute acknowledges – doesn’t even necessarily involve criminal intent.

Under the Florida v. Adkins ruling, however, people can be convicted of a supposed crime on the basis of mere physical proximity to contraband they didn’t know was on their property or among their personal effects.

In his dissent, Justice James E.C. Perry points out that the standard embraced by the court would permit the prosecution and imprisonment of "a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection … a driver who rents a car in which a past passenger accidentally dropped a baggie of marijuana under the seat; a traveler who mistakenly retrieves from a luggage carousel a bag identical to her own containing Oxycodone; a helpful college student who drives a carload of a friend’s possessions to the friend’s new apartment, unaware that a stash of heroin is tucked within those possessions; [or] an ex-wife who is framed by an ex-husband who planted cocaine in her home in an effort to get the upper hand in a bitter custody dispute."

The majority opinion blithely dismissed these possibilities – at least some of which have been validated through actual court experience – by insisting that the statute’s "affirmative defense" provision addresses the rights of the defendant. As Justice Perry observes, this violates common law principles – traceable to ancient Roman law – by forcing the defendant to overcome a presumption of guilt:

"Under the majority’s decision … the innocent will from the start be presumed guilty. The innocent will be deprived of their right to simply deny the charges and hold the State to its burden of proving them guilty beyond a reasonable doubt. The innocent will instead be forced to assert an affirmative defense, whereupon the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance….. The innocent will then have no realistic choice but to shoulder the burden of proof and present evidence to overcome that presumption…. The innocent will then hear their jury instructed on the permissive presumption that they knew of the illicit nature of the substance in question."

The statute upheld in the Adkins ruling is involved in roughly one third of all felony charges in Palm Beach County. Peter Antonacci, State Attorney for Palm Beach County, expressed relief over the ruling. "It would have been a substantial mess if had gone the other way," he told the Palm Beach Post, in apparent ignorance of his implicit admission that his office is responsible for imprisoning a great number of people who had done nothing to harm anybody else.