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Federal Judge Throws Out Florida's Drug Law

A federal judge ruled July 27 that Florida's drug law was unconstitutional, leaving thousands of criminal cases up in the air. US District Court Judge Mary Scriven of Orlando threw out the Florida Drug Abuse Prevention and Control law on the grounds that it violates due process because it does not require prosecutors to prove a person knew he or she possessed illegal drugs.

The federal courthouse in Orlando, where a judge threw out Florida's drug law. (image via Wikimedia)
In 2002, Florida legislators amended the state's drug law, eliminating the requirement that prosecutors prove mens rea, or criminal intent, as part of obtaining a conviction. Florida was the only state in the nation to not require mens rea as part of a drug conviction.

"Not surprisingly, Florida stands alone in its express elimination of mens rea as an element of a drug offense," Scriven wrote in her order. "Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the 'unknowing' possession of a controlled substance."

The ruling came in the case of Mackle Vincent Shelton, 33, who was convicted in 2005 of drug charges in Osceola County. Shelton, who is currently serving an 18-year prison sentence for cocaine delivery and other charges, appealed his conviction on the grounds that the jury wasn't required to consider intent in order to convict him.

In his instructions to the jury in Shelton's case, the trial judge told jurors 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 carrying or distributing cocaine or any controlled substance at all.

The National Association of Criminal Defense Lawyers (NACDL), which filed an amicus curiae brief in the case, pointed out that without the criminal 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." Joining the NACDL in filing the brief, which was favorably cited by the court, were the Florida Association of Criminal Defense Lawyers, the ACLU of Florida, the Drug Policy Alliance, the Calvert Institute for Policy Research, and 38 professors of law.

Florida defense attorneys applauded the ruling, saying the impact could be huge. Several told the St. Petersburg Times they intended to file motions seeking dismissal of pending drug cases, citing the judge's order.

"It has one of the largest potential effects on criminal law in the past decade," said St. Petersburg lawyer Jeff Brown. "We're talking hundreds of thousands of drug cases."

"In declaring the statute unconstitutional on its face, it appears that all drug prosecutions in the state are at risk," said Tampa defense lawyer Eddie Suarez.

That's tough, said Tampa attorney James Felman, who represented Shelton. Legislators should not have written an unconstitutional law removing mens rea, he said. "It takes the presumption of innocence and throws it in the garbage can," Felman said. "I think the legislature must immediately fix the statute," he said. "This is not a close call. No state has ever done this before. Legally, it's beyond the pale."

"This is a victory for the most fundamental notions of fairness and justice in our system -- the idea that no one should suffer a conviction unless the state proves criminal intent beyond a reasonable doubt," said NACDL executive director Norman Reimer. "As I previously said about this case, the country has been drifting away from the moral anchor of a clearly defined mens rea requirement in its criminal laws. Laws like these would run it aground."

Orlando, FL
United States
Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
Looking for the easiest way to join the anti-drug war movement? You've found it!

Malicious Intent

The " Drug War " is Un-Constitutional according to the U.S.A. Constitution . A Sham on the U.S.A. Taxpayer's . American voters get what they vote for . Forget the Fuhrer . Vote . How-Ever .  Ron Paul 2012 .

Yes, vote Ron Paul

If every reformer were to vote for this man in the primaries and caucuses, he'd take the nomination and then the presidency and half our battle would be won.  So even if you have to register as a Republican to vote for him in your State's primary or caucus, please do; if that makes it impossible to vote for other favored candidates in other races, please consider it a necessary sacrifice, for the greater good of having a president who will end the drug war at the federal level, and you can always change your registration again after the presidential election.  And if your State allows a vote for the VP or has a top two system, vote for Gary Johnson (the ideal running mate for Dr. Paul).

And by all means, do NOT listen to the media when they tell you he's not electable or fringe, here's a quote from a short article about that kind of reporting:


It all makes one wonder how accurate those polls are that place Ron at around 10%. It's clear that the media sees his supporters as a mere factor that skew the polls away from results that are more "representative of America." The fact is that Ron Paul does represent America. He opposes the wars, he opposes the income tax, he opposes further burdening the country with more debt, and he wants to restore sound money and end the Federal Reserve. What the media doesn't want is for Americans to figure this out.

They want people who like Ron Paul to think he can't win; his victories don't matter; he's a "fringe candidate;" only kooks support him; best to support someone else who actually stands a chance. The establishment wants to create a self-fulfilling prophecy that a Ron Paul presidency is a hopeless cause. Their plan won't work. Once the false paradigm is shattered and the people see the truth, Ron Paul will become President of the United States, and it will be all thanks to those "Ron Paul fanatics," the Black Swans of Politics. 

And here's the link to the full article (which informs about Ron Paul and his supporters):

Ron Paul

I don't mean to troll or anything, but didn't people say the same things about Ralph Nader? (Ha aren't some still saying those things about Ralph Nader?)

Actually, it's treason.

Article 3 section 3 - "Treason against the United States shall consist only in levying war against them or, adhering to their enemies". The "war on drugs" is a war against the states, and enriches their enemies by driving up prices and promotes tax evasion, while opening up the market to children.. Also, using public funds to print and distribute deliberately false and misleading information, is a felony.(read anything from the ONDCP lately?)

Malicious Intent, Result of Lobbyists, or Inept Legislators?

I'd be interested to know WHY this law was amended in the first place.

I could be malicious intent to gain money through forfeiture, the result of lobbyists representing a group with something to gain, or just due to bad legislation.

Ron Paul

It bothers me when I hear someone say that he/she voted for their 2nd choice candidate because they felt that voting their conscience was a wasted vote.  they do this because they figure their 1st choice just can't win. 

NOT voting your conscience IS a wasted vote people. If you vote for 'the other guy' or the 'lesser of 2 evils' and they win, is that a victory? Obviously not.  After the lesser of two evils takes office, you will most certainly feel like you 'sold out your vote'.  Don't do it. I know this because i do this almost every time. NEVER again. Obama is a HUGE let-down. He's just a better looking, better speaking, calmer, Bush, Clinton, Nixon.... go back as far as you want, they're all the same.

Vote Ron Paul. I will be, as I will be voting my conscience.


 If you vote for 'the other guy' or the 'lesser of 2 evils' and they win, is that a victory? Obviously not.

Of course it is. There were only two realistic outcomes, and you got the one that was more preferable to you.

If that isn't a victory, then what is? If instead you "vote your conscience", and hand the election to the candidate who hates everything you stand for (instead of the candidate who only hates half of what you stand for), is that a victory? Obviously not!

The point of an election is to put someone in office, not just to measure public opinion; and the point of voting is to influence the outcome of the election, not just to make your voice heard. When you use your vote in a way that's likely to make the election outcome less favorable, you're shooting yourself in the foot.

It'd be great if we had an electoral system where you could safely vote for your true favorite candidate without the risk of making things worse... but we don't. Until we get a better system, we have to work with the one we have.

self-fulfilling prophesy

And as long as enough of us believe that, it will remain true. That is why things will just keep getting worse.

Vote Ron Paul

You know the difference between a Randian and a Satanist?  A Satanist has a code of ethics.  Libertarianism is a dog-eat-dog philosophy espoused by those desperately trying to come up with a moral excuse for selfishness.  And failing.  I wouldn't vote Ron Paul if he were the last monomaniacal, self-absorbed rich guy on the planet.  I oppose the drug war, but all these folks want to do is hand all political power over to the people with the most money.  They have no respect for democracy at all.


"Hundreds of thousands of cases" since 2002?

That's a minimum of 200,000 cases in nine years.  That makes 22,222 per year.  That's 61 cases per day, seven days a week, 365 days a year.

Seems to me that number must be a little high (so to speak) or it's all the proof anyone will ever need that a punitive approach doesn't reduce usage rates.

We are Anonymous

This is how I know you're a retard: "Libertarianism is a dog-eat-dog philosophy espoused by those desperately trying to come up with a moral excuse for selfishness."

Jesse: We are Anonymous

"Libertarianism is a dog-eat-dog philosophy espoused by those desperately trying to come up with a moral excuse for selfishness. "


this is how I know you're mentally challenged.



It didn't have to be this way....

This is a perfect time to point out that, prior the enactment of the Harrison Narcotics Act of 1914, when drugs were legally available over the counter, and there was little financial reward to providing these drugs, drug abuse only affected 0.25% of the population.

So, how can the govt. claim that their anti-drug laws reduce drug use?  These laws CAUSED drug usage to explode!


The DEA will go down fighting tooth and nail. I know several agents very well. Have known them for years. If you knew them you would be protesting in the street, I guarantee it! They will never see a court of law convicting them of treason, theft, murder, rape,dealing drugs or extortion. The public seems totally unaware that the DEA are our tax payer supported homegrown terrorist.

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