Sunshine State Shakeup: Is Florida's Drug Law Unconstitutional?

Sunshine State Shakeup: Is Florida's Drug Law Unconstitutional?

By Ashby Jones

You might think that, by now, the constitutionality of all 50 states’ drug laws would have long-been settled. After all, the drug laws have mostly been on the books for several decades, and there’s really never been a shortage of people who would have been well-served by seeing a drug law shot down.

But down in Florida, there’ve been a spate of challenges to one of the state’s key drug laws. And at least two of them have been successful. The result, as I write in Monday’s WSJ: confusion among lawyers and possibly thousands of convictions ultimately being overturned.

To win a conviction under the drug laws of most states, a prosecutor has to convince a jury that the defendant knew he owned or sold an illicit substance. But in 2002, Florida became the only state in the country to do away with the “knowledge requirement” in its main drug law.

A federal judge in Orlando was the first to strike a blow to the law late last month, ruling that a central part of Florida’s Drug Abuse Prevention and Control law violated the 14th Amendment’s Due Process Clause.

Then, last week, a state judge in Miami cited Judge Scriven’s opinion in overturning the drug-distribution convictions of 39 defendants. Judge Milton Hirsch acknowledged that the “overwhelming majority” of the 39 defendants “may have known perfectly well that their acts of possession or delivery were contrary to law.” Nevertheless, he shot down the law on grounds that it “reaches beyond those who willfully do wrong. . . and includes within its wingspan those who meant no wrong.”

The office of the Florida Attorney General, Pam Bondi, has filed notices of appeals in both cases. “This decision conflicts with binding state court precedent upholding Florida’s drug law,” said Bondi, shortly after Judge Hirsch issued his ruling on Wednesday. “This decision is flawed and it unduly hinders prosecutors’ efforts to keep criminals off our streets.”

The issue will likely be settled by a higher court—the Florida Supreme Court, the 11th U.S. Circuit Court of Appeals or, possibly, the U.S. Supreme Court. It is unlikely that Florida will see a mass exodus of its prison population until then.

But if the key part of the law is ultimately struck down, “it could get pretty chaotic,” said James Felman, the lawyer for Mackle Vincent Shelton, whose conviction Judge Scriven overturned.

According to the Florida Department of Corrections, nearly 94,000 people have been sent to state prisons for drug crimes since the start of 2002. Jo Ellyn Rackleff, a department spokeswoman, said most of them were convicted under the Drug Abuse Prevention and Control law.