Monday, August 1, 2011

Section 893.13, Florida Statutes, which expressly eliminates mens rea as an element of a drug offense, is facially unconstitutional


Criminal law -- Habeas corpus -- Delivery of cocaine -- Knowledge or intent -- Amendment to Florida's Drug Abuse Prevention and Control law, Section 893.13, Florida Statutes, which expressly eliminates mens rea as an element of a drug offense, is facially unconstitutional as violative of Due Process Clause, because it results in a strict liability offense with a harsh penalty, substantial social stigma, and overbroad regulation and punishment of otherwise innocuous conduct -- State of Florida exceeded constitutional limits beyond which states may go in choosing to eliminate elements from criminal offenses -- No merit to arguments that any constitutional infirmity should be overlooked because defendant may raise lack of knowledge as an affirmative defense, rendering the statute something other than strict liability offense; or, alternatively, statute does not regulate innocuous conduct since “the possession of cocaine is never legal,” and the imposition of harsh penalties without proof of mens rea is simply a risk drug dealers undertake for selling or delivering cocaine -- Remaining habeas claims challenging conviction and sentence are unavailing
Reported at 23 Fla. L. Weekly Fed. D11a

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