Judge Rejects Florida's Drug Exception to Due Process

Last week a federal judge in Orlando ruled that Florida's Comprehensive Drug Abuse Prevention & Control Act violates the constitutional right to due process because it allows conviction without proof of mens rea, the "guilty mind" that is normally considered a crucial element of a criminal offense. The decision (PDF) could have a sweeping impact, casting doubt on convictions under the law since 2002, when the statute was enacted in its current form. "It has one of the largest potential effects on criminal law in the past decade," a local defense attorney told the St. Petersburg Times. "We're talking hundreds of thousands of drug cases."

In 2002, responding to Florida Supreme Court rulings that said people can be convicted of possessing controlled substances only if they do so knowingly, the state legislature amended the drug law to explicitly remove that requirement. Under the new law, a prosecutor no longer had to prove a defendant knew the substance he possessed was illegal; instead lack of knowledge could be claimed as an affirmative defense, with the defendant required to overcome "a permissive presumption that the possessor knew of the illicit nature of the substance." In effect, the amendment changed the presumption of innocence into a presumption of guilt. Think of it as the drug exception to the Due Process Clause. In last week's decision, which she issued in response to a habeas corpus petition by a man convicted of delivering cocaine, U.S. District Judge Mary Scriven put a damper on Florida legislators' eagerness to throw out a fundamental principle of justice in the name of preventing people from getting high:

Florida stands alone in its express elimination of mens rea as an element of a drug offense. Other states have rejected such a draconian and unreasonable construction of the law that would criminalize the "unknowing" possession of a controlled substance....Under Florida's statute, a person is guilty of a drug offense if he delivers a controlled substance without regard to whether he does so purposefully, knowingly, recklessly, or negligently. Thus, in the absence of a mens rea requirement, delivery of cocaine is a strict liability crime under Florida law.

Scriven noted that "a strict liability offense has only been held constitutional if: (1) the penalty imposed is slight; (2) a conviction does not result in substantial stigma; and (3) the statute regulates inherently dangerous or deleterious conduct." She said none of those requirements is satisfied in the case of delivering cocaine, where the penalty and stigma are severe and the underlying conduct—transporting something—is entirely innocent but for knowledge that the item is contraband. Scriven offered a hypothetical to illustrate the implications of applying strict liability to drug offenses:

Consider the student in whose book bag a classmate hastily stashes his drugs to avoid imminent detection.  The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statute:  delivery (actual, constructive, or attempted) and  the  illicit nature of the substance. The victim would be faced with the Hobson's choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of the two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposes that he does in fact have guilty knowledge....

The Court declines to grant the State broad, sweeping authority to impose such an outcome in direct contravention of well-established principles of American  criminal jurisprudence—that no individual should be subjected to condemnation and prolonged deprivation of liberty unless he acts with criminal intent—and binding Supreme Court precedent governing the constitutional analysis of strict liability offenses. Because [Florida's drug law] imposes harsh penalties, gravely besmirches an individual’s reputation, and regulates and punishes otherwise innocuous conduct without proof of knowledge or other criminal intent, the Court finds it violates the due process clause and that the statute is unconstitutional on its face.

The challenge that led to Scriven's decision (PDF) was supported by the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the Drug Policy Alliance. The NACDL has more here.

[via the Drug War Chronicle]

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  • Fist of Etiquette||

    Soft. On. Crime.

  • ||

    Um, "think of the children"?

  • Joe R.||

    This step does not immediately make all drugs legal. Therefore, based on drive-by arguments in the edumickation thread, this decision is a step in the wrong direction and should be rejected by all true libertarians.

  • Almanian||

    But...but....TEH CHILDRUNZSZZ!!!1!1!!

  • In Time of War||

    So, if someone shipped drugs, could the cops arrest the USPS/FedEx/UPS folks?

  • WWJGD||

    No, you make sure it gets delivered to the place it was supposed to be intercepted before it arrived and then shoot the innocent guys dogs.

  • ||

    awesome. i've always thought strict liability offenses were wrong, if not blatantly unconstitutional.

    kind of like the sex crime laws that made sex with a person under a certain illegal even if there was no mens rea.

    iow, a rob lowe scenario. meet a girl at a bar (thus reasonably assuming she is 21), but she is actually 14 or something.

    strict liability is by its nature unjust.

  • Citizen Nothing||

    The law's the law. You can't expect officers to pick and choose the laws they enforce.

  • ||

    which is totally irrelevant to the point. but i realize childish shit is how ya play the game

  • ||

    10 points.

  • Then||

    -10.
    It's a draw.

  • ||

    100 million godzillian points infinity!
    Nyah nyah!

  • ||

    it's also a false analogy. the laws here are stupid, but THAT is not the cops' fault, that is the legislatures fault.

    however...

    the decision to use a SWAT raid *was* the cop's decision, and unless there were specific articulable facts to justify a SWAT raid (which i suggest there were not), then THAT decision is not only wrong, but imo unconstitional, as well as insanely stupid

    and 100% the "cops" fault. for loose definition of cops

  • ||

    If you enforce a stupid law, you must be a mindless drone or stupid yourself. Your choice.

  • Lib'tarian||

    Nice! False dilemma and ad hominem.
    But you know that. Or you're stupid.

  • ||

    yawn. -10 for dumb meme... again.

    i guess MD's who must report crimes involving diversion, their DEA #, fraud, etc. or lose their license are just mindless drones or stupid, too

  • ||

    If you don't agree with me, you're a stupid poopy face!
    Your choice.

  • Spnge the Dyslexic||

    you can, but then you have to resing, I was an officer for a while, quit, because i could not and would not enforce drug laws for any non addictive substance, hell i even let a few crack heads go, they were always like, are you sure your a cop, and i would say yeah, it aint my buisness what you do on your own time, your not high in public and causing a scence so why should i care. I also never wrote one no seatbelt ticket. thier choice to become a projectile, who am i to say different.

  • ChicagoSucks||

    Why did you quit again?

  • Ska||

    He's going into the human missile weapons business.

  • ||

    yea, but i bet your reports were fun to read.

  • ||

    what reports?

  • ||

    the ones he actually wrote. with such inventive grammar and spelling

  • ||

    ADA exemption because of his dyslexia. Go Union!

  • ||

    Except when they give "professional courtesy". In those cases picking which laws they enforce is always acceptable.

  • silent v||

    kind of like the sex crime laws that made sex with a person under a certain illegal even if there was no mens rea.

    Why should it depend on whether or not she is on her period?

  • Warty||

    There's a legit +10.

  • ||

    yea, and i'll take a -10 for not recognizing the pun implicit in mens rea and taking advantage of it like any decent human being should have

  • ||

    I feel this way about DUI law also.You should only have to take a chemical test if you are charged with reckless driving or have caused a accident.

  • Rev. Blue Moon ||

    I concur. If the difference between Safe Driver A and Safe Driver B is .10, then I guess that alcohol and driving is not inherently dangerous, is it?

  • ||

    oh keeerist. not this shit again.

    well, at least you said you "feel" vs. you "think" which is evidence of the lack of true thought...

  • ||

    I think this way about the DUI law also. There is no way driving the speed limit and using signals while changing lanes should result in a made-up charge because I had a few drinks before getting behind the wheel.

    More emphasis needs to be placed on drivers driving recklessly, or if anything, driving under the speed limit. It's far more dangerous to drive 10 mph under in the left lane and force everyone behind you to slow down than to drive with the speed of all traffic which may be 5-10 mph above the posted speed limit.

  • ||

    i'm not hopping down this tangential bunny trail again. it's just funhouse mirror bullshit. been there, done that.

  • ||

    The Court declines to grant the State broad, sweeping authority to impose such an outcome in direct contravention of well-established principles of American criminal jurisprudence

    It's activist judges like this who should be on the Supreme Court.

  • ||

    I'd prefer a 9-person board of highly principled minarchists, but I'll take what I can get, right?

  • kinnath||

    It's the occasionally glimpse of sanity in people in positions of authority that keeps me off anti-depressants.

  • ||

    looks like you picked a good day to stop sniffing glue!

  • Jim||

    Shirley you can't be serious?

  • Fire Tiger||

    Calm down, get ahold of yourself (slap slap)

  • ||

    You can't expect officers to pick and choose the laws they enforce.

    Orders were followed.

  • ||

    dumb laws were passed. fortunately a judge was able to see how strict liability offenses are in themselves unconstitutional

    that's how the system is SUPPOSED to work

    and sometimes it does.

  • squishua||

    Basically you are saying the hired muscle has no personal culpability for carrying the desires of his employer. Tell me, do you also believe mafia hitmen should be similarly absolved (after all, da boss told 'em to do it.)

  • ||

    no, i am saying that some of us actually believe in seperation of powers and rule of law and shit

    and are also pragmatic

    others do no fucking good whatsoever but just whine about injustice from their mama's basement

  • squishua||

    I had no idea there were so many mothers with developmentally retarded sons stashed in their basements. Do you encounter this often on patrol?

  • ||

    no, only on reason.com

    hth

  • Joe R.||

    i am saying that some of us actually believe in seperation of powers and rule of law and shit

    And some of us believe in personal responsibility.

  • ||

    those aint mutually exclusive.

    it's called "LI-BER-TAR-I-A-NIS-M"

    hth

  • ||

    that's how the system is SUPPOSED to work

    Well, except for the part where thousands of people were imprisoned without due process.

  • squishua||

    Cuz THAT is how the system is ACTUALLY works!

  • ||

    sux doesn't it?

  • Then||

    "It has one of the largest potential effects on criminal law in the past decade," a local defense attorney told the St. Petersburg Times. "We're talking hundreds of thousands of drug cases."

    Libertarians complain anyway.

  • ||

    libertarians are a lot like civil service employees in this respect.

    nothing is ever good enough

    30 hr workweek at $60 an hour and almost impossible to get fired?

    not enough

    they need full medical with free crack!

  • Lib'Tarian||

    I'll be happy when the State is abolished and blissful, peaceful libertopia is achieved. I'm sewing a flag for the occasion. White unicorn on a red field with the motto: "Dude!"

  • Spnge the Dyslexic||

    Greg Gutfield from Red Eye???

  • ||

    and the eagles must be banned

    i fucking hate the eagles, man!

  • T||

    But will the unicorn be pooping rainbows? Only the rainbow-poooping unicorns are libertarian.

  • ||

    Lol.

  • sarcasmic||

    Libertarians are the opposite of civil service employees.

    What libertarians want is to be left alone. Mind your business and I'll mind mine. We don't want you to give us anything. The less you give the better.

    That is the opposite of civil service employees who want the power to mind other peoples' business, and get paid the moon to do it.

  • ||

    no, it's the same in respect to the aspects i mentioned, but different in regards to the aspects you mentioned

    i have never seen, not even amongst stupid ass progressives (an oxymoron if there ever was one), any group more inclined towards perfect is the enemy of the good wanking than people in this blog.

    i mean this is a hy000ge liberty enhancing decision. it is fucking awesome.

  • Warty||

    stupid ass progressives (an oxymoron if there ever was one)

    You mean tautology, right?

  • ||

    yes, i do . my bad

  • ||

    You mean tautology, right?

    I prefer the term redundant(hot water heater), tautology strikes me as needlessly pedantic.

  • Warty||

    Tautologies are tautological.

  • ||

    the more you try to go against nature, it's part of nature too

    (sex with aardvarks excepted. that's just rong(tm))

  • ||

    Prove it!

  • Hank||

    tautology strikes me as needlessly pedantic

    ...said the guy picking on verbiage on the Internet. ;)

  • ||

    well, that's needFULLY pedantic.

  • sarcasmic||

    an oxymoron if there ever was one
    Er, that's a redundancy, not an oxymoron.

    I suppose libertarians are never satisfied because there is always some control freak trying to tell them what to do.

    And progressives are never satisfied because there is always something that they do not yet control.

  • ||

    the point is that it becomes boy who cried wolf syndrome combined with whiny pimply teenager in his mom's basement mode.

    i mean for fuck's sake. this is an AWESOME decision. really.

    it's also not just a decision that leads to a good result, but is correct as a matter of process analysis.

    iow, it's a sound decision with incredibly beneficial results

    it's EVERYTHING you could want from our courts.

  • sarcasmic||

    this is an AWESOME decision
    Yes it is.
    it's EVERYTHING you could want from our courts.
    Not everything. It's more like a random blip than everything.

  • ||

    a random blip? look, no offense, but i don't think you realize how important this decision is.

  • sarcasmic||

    By random blip I mean it is unusual.

    Most of the time it seems the court sees its role not as judging the legislation against the Constitution, but in defending legislation against those who would judge it against the Constitution.

  • ||

    because LOWER courts are supposed to rely on precedent, not make independent constitutional analysis

  • sarcasmic||

    I'm talking about when legislation is challenged.
    It always appears that the court sees it's role not as a check and balance against legislative power, but as a defender of it.

  • ||

    Then why bother with them at all. Unconstitutional is unconstitutional. Shouldn't take a higher pay grade to figure that out.

  • sarcasmic||

    It takes a higher pay grade to read "shall not be infringed" to mean "shall be infringed under certain circumstances that are yet to be determined", or "Congress shall make no law" to mean "Congress shall make laws under certain circumstances that are yet to be determined".
    The lower pay grade is for those who say simply "the law is the law because it is the law and I will instruct the jury to rule based upon the law because it is the law."

  • Lib'tarian||

    I suppose libertarians are never satisfied because there is always some control freak trying to tell them what to do.

    And like the emotionally stunted adolescents that we are, there's nothing we hate worse than being told we can't do whatever we want.

  • ||

    you're not the boss of me. i'll do what i want! where's my CHEEZY POOFS?!?!

  • sarcasmic||

    A free person does not take orders, or ask permission to do something that is legal.

    So much for this being the land of the free.

  • zoltan||

    Doing whatever you want as long as it doesn't infringe upon another's rights?!?!? That sounds hORRIBLE!

  • Apogee||

    Doing whatever you want as long as it doesn't infringe upon another's rights?!?!? That sounds hORRIBLE!

    But you don't understand - some really smart guy on the internet told you that you're part of a group of emotionally stunted adolescents!

    Without, you know, actually refuting what you just said.

  • ||

    it's hard to refute nonsense.

    argle bargle!

    now refute THAT!

    see?

  • Warty||

    perfect is the enemy of the good

    I'm pretty pleased by this, but it doesn't mean I don't want drugs to be fully legalized.

  • ||

    right. but if you can't ever bask in the goodness but you just complain you want more, you become a self parody etc.

    i want kate beckinsdale, mila kunis and a 250kilo clean and jerk too!

    but i can set that aside and bask in some teh awesome here!

  • sarcasmic||

    You want a 250 kilo man to clean and jerk you?

    Ew. NNTAWWT, but seriously. Ew.

  • Warty||

    All I want is some delicious legal cocaine and a 315lb military press. You're just covetous.

  • ||

    and some tasty waves and a righteous buzz

  • Warty||

    So you're an oly lifter, dunphy? I've been fucking around with power snatches recently, and I have a decent enough power clean, but I'm total shit with the full versions of the oly lifts.

  • ||

    i could bla bla about this shit for hours, but i will just say - get a good coach. mine is a former olympic team coach and knows his sheeyit

  • Warty||

    Enh, only so much time to spend on this shit. BJJ takes up enough of my time.

  • ||

    1) it doesn't take long to learn proper technique
    2) once motor patterns are established, it takes FAR FAR FAR longer to unlearn bad motor habits than it would have to learn proper one from the beginning
    3) proper technique is far more efficient, more fun and allows you to lift more weight

    etc.

  • Warty||

    I dunno, power cleans and snatches are plenty fun. Maybe I'll find a coach when I'm less broke.

  • Fluffy||

    i want kate beckinsdale, mila kunis and a 250kilo clean and jerk too!

    I'll take Mrs. Borat.

    And I want him to know about it, too. We'll set up some kind of hidden camera thing where I play a fake character I've invented - "I'm-Fucking-Your-Wife-Man" or something - and bring him in for a meeting on false pretenses.

    These "This is what I want" threads are fun.

  • sarcasmic||

    I'd settle for a good blowjob.
    My job still sucks, but the wife...

  • Ben||

    Why don't include a black guy to make it a threesome while you have some douchebag with a tiny cock in a vise to play the cuckolded slave.

  • BakedPenguin||

    i mean this is a hy000ge liberty enhancing decision.

    It would be even better if it also destroyed the precedent about mens rea related to quantity and intent. The fact that you have a "lot" of drugs doesn't necessarily mean you're dealing. Relatively small time pot growers and habituated opiate users (with large daily habits) come to mind.

  • ||

    true.

    fwiw, under my state case laws, amount of drug IN AND OF ITSELF is not sufficient to establish intent to sell - suggestive, not dispositive

  • sarcasmic||

    Add the sandwich bags that almost every house has in its kitchen, and *presto* Dude's a dealer!

  • ||

    again, not where i work, but i chose a relatively libertarian state.

  • sarcasmic||

    Oddly where I moved here from the city passed an ordinance making smoking a legal tobacco cigarette in a restaurant a crime punishable by a $100 fine, going up to $1000 and a misdemeanor charge for third offense.

    Meanwhile simple possession of marijuana remained a $50 ticket.

    So I went into a bar and lit up a joint. The bartender snatched it away from me and took a hit before putting it out.

    That was a fun place to live.

  • Fire Tiger||

    LOL, at least your honest about yourself.

  • ||

    Aren't you a "civil servant" fucktard?

  • ||

    smooches! hand banana!

  • zoltan||

    At least we don't bitch on other people's stolen money.

  • ||

    A quick reminder to everyone that it is Thursday.

  • WWJGD||

    Afterwards comes Friday?
    Friday Friday Friday?

  • Troll||

    SugarFree the Enforcer?
    How...authoritarian.

  • T||

    Thursday I don't care about you.

  • ||

    The offer still stands, Sugar baby.
    Bring P Brooks. How does he look in a collar and diaper?
    Not that you would know! ;-)
    http://www.jerryspringertv.com/be_a_guest.php

  • sarcasmic||

    Thursday, it's more than I can stand. I'm holding her down, holding her down. She's down again.

  • Mainer||

    Thank You, SF.

  • ||

    Like a drifter, I was born to walk alone...

  • Cold Side of Pillow||

    Don't you actually have 4 calories per packet?

  • ||

    THORSDAY

    An excellent day to stay away from bridges.

  • Warty||

  • Jack the Reaper||

    Are you making a reference to Heimdall, the Guardian of the Bifrost Bridge?

  • MNG||

    In the recent movie he was black.

    Because we all know how many black vikings there were...

  • ||

    Since the Asgardians in the movie are aliens, I'm giving the producers a pass on the race neutral casting.

  • ||

    Were any of them purple, blue, green, etc? If not, then...

    RAAAAACIIIIISSTTT!!11on1on1on1one!.

  • zoltan||

    Also it was Stringer Fucking Bell for god's sake.

  • Robert||

    it's pretty funny considering Heimdal is a.k.a. The White God.

    I think the casting of Heimdal was rigged.

  • cynical||

    Maybe he was their Ahmad ibn Fadlān ibn al-Abbās ibn Rāšid ibn Hammād

  • Warty||

    I assumed he meant the Rainbow Bridge.

  • Warty||

    Which is Bifrost. Goddammit.

  • ||

    Rainbow Bridge. Bifrost Bridge.

    LGBTV

  • H man||

    Your god was nailed to a cross. Mine carries a hammer. Any questions?

  • Ben||

    Yes but unlike our god, you're technically not immortal. So you're not a true god.

  • H man||

    Yes, but if anybody asks, I tell them I am a god.

  • [name withheld]||

    I came up with Troll-Free Tuesday several years ago. It half-worked, for a while. Damn anarchists wouldn't cooperate.

  • Warty||

  • ||

    The comments are pretty liber-aware for a newspaper website.

  • Warty||

    Andrew Sandri · U.S. Wildland Firefighter Academy
    Certain police, probation officers, drug counselers who get court ordered patients, prosecutors, judges, all the court staff, etc...all have a huge stake in keeping the status quo of illegalization (not all of the forementioned but a powerful majority)...it's time to say no to the drug warrior culture and say yes to freedom of choice.

    Yeah, dude. What's in the water in El Paso?

  • ||

    lithium

    seriously.

  • cynical||

    Can we just hire a special prosecutor to indict the entire executive branch under RICO laws?

  • MNG||

    Remember this kind of case the next time some right-wing nutjob starts to wail about the evils of judicial activism...

  • ||

    imo, this isn't judicial activism. there is sound constitutional basis for this decision.

    if drug laws themselves were ruled unconstitutional, there would be no sound constitutional basis for THAT. that would be judicial activism. it would be a good RESULT, but bad process

    this is both good result AND good process

  • MNG||

    What is the sound, "strict constructionist" basis for this ruling?

  • ||

    that would take way more typing than i have energy for

    plus, the decision speaks for itself. read it

  • MNG||

    I doubt the opinion rests on strict constructionist grounds...

  • ||

    Probably does, actually.

    Due process is right there in the Constitution. At the time the Constitution was adopted, that meant the entire burden of proof for all elements of the crime rested on the state. And mens rea was a necessry element of any crime.

  • MNG||

    Due process was originally interpreted rather narrowly, to mean protection from irregular or woefully insufficient procedures, not substantive protection from "unfair" laws. A narrow reading of terms (the heart of judicial restraint or strict construction) doesn't give you a concept of due process that bars strict liability. The term itself says nothing about mens rea, you have to have the broad idea that its fundamentally unfair to deprive someone of life, liberty or property without a mens rea, and therefore the "process" that was "due" was missing.

  • ||

    Due process was originally interpreted rather narrowly, to mean protection from irregular or woefully insufficient procedures, not substantive protection from "unfair" laws.

    I think the requirement that the state prove every element of a crime, including mens rea, was viewed as a due process type deal from day one. And not one that could be tossed aside by passing a "substantive" law that did away with it.

  • T||

    We had to have a contitutioanl amendment to ban alcohol. But we don't need one to ban a plant that grows wild in the ditch?

  • ||

    certainly not on the STATE level

  • BakedPenguin||

    The plant affects interstate commerce. Making and selling alcohol doesn't.

    Or something.

  • cynical||

    "if drug laws themselves were ruled unconstitutional, there would be no sound constitutional basis for THAT."

    Enumerated powers? 9th/10th amendment? At the federal level, I mean.

  • MiNGe||

    Commerz Clawz, bitchez!

  • MNG||

    I'd love to see the argument that the feds can't regulate the interstate sale and transportation of drugs under the commerce clause.

    I could imagine an argument that mere possession could not be a federal issue though.

    It's pretty moot, AFAIK all states have drug laws, many of them worse than the federal ones...

  • ||

    i don't think the first argument flies. interstate sale of drugs CLEARLY is interstate commerce.

    the problem is cases like raich that say that growing MJ in your own house, pursuant to state law, for your own consumption has in ANY sense, a connection to interstate commerce

    scalia was a major fail on that one

  • LoopFiasco||

    One could plausibly argue that the constitution does not give a general police power to the feds; such powers were traditionally and specifically reserved to the states (except for a few constitutionally defined crimes such as treason) under the 10th amend. Further, since the feds were not specifically granted a police power in the constitution they could not invent one out of the commerce clause by implication. Alternatively, 'regulation' of commerce does not entail use of the criminal law. Perhaps taxing, perhaps civil judgments, perhaps property or equity courts. But not criminal courts. Not plausible now, but prior to say 1930 it may have succeeded.

  • db||

    While I dislike the ramifications, there is a parallel in firearms law. The only reason it's lawful to own a machinegun in many states is that they accept the Federal regulation of them. PA law, for instance, specifically states that MGs are unlawful unless registered per federal law. If the feds removed the registration requirement, making MGs legal under federal law, any such guns would become illegal in PA. In this state it's likely the law would be changed, requiring a state regulatory regime to supplant the federal one, but owners in other states might not be so lucky.

    The general problem is that states frequently outlaw actions or things, excepting cases where those things are done or posessed in accordance with Federal regulations. Removing the federal regulations is only the first step.

  • Robert||

    It's the same with state pharmacy laws. They require new drugs to be either registered with the state or legal in interstate commerce. Everyone therefore goes thru FDA rather than trying to register their drug in every state.

  • ||

    i was referring to state level

  • ||

    I don't know. I think you could overall federal drug laws on constitutional grounds just not the state laws.

  • Cold Side of Pillow||

    Yes, there would be sound constitutional basis for that. Are you trying to say that you have to declare the CSA unconstitutional first?

  • ||

    No I am pretty sure I wasn't trying to say that since in my ignorance I don't know what the CSA stands for.

  • Cold Side of Pillow||

    Controlled Substances Act

  • sarcasmic||

    Judicial activism is when a judge legislates from the bench.

    Striking down legislation is not the same as creating it.

  • ||

    If this stands, I don't see how child porn laws are constitutional.

  • MNG||

    Child porn laws don't have a mens rea?

    Also, I think the SCOTUS gave child porn laws their own Special Category (Ferber).

  • Fluffy||

    I always thought that they were a pure possession rap. I.e., if you picked up a lost CD-ROM on the street and it was full of child porn images, you would be convicted of possession even if you claimed to have never looked at any of the files.

  • ||

    The federal statute is as strict liability as it gets. All the government has to prove is that you had it. There isn't even an innocent possession defense. Also hazardous waste disposal is a strict liability crime.

  • ||

    The federal statute is as strict liability as it gets. All the government has to prove is that you had it. There isn't even an innocent possession defense. Also hazardous waste disposal is a strict liability crime.

  • Rev. Blue Moon ||

    I wonder what would happen if an attorney received these kinds of images from a client? Could the attorney be prosecuted?

  • ||

    Hell, unless there's a specific exception for law enforcement, wouldn't it cover the cops and prosecutors, the bailiff who takes it into evidence, etc. etc.?

  • cynical||

    They would just have to be rewritten to include criminal intent, where they don't already.

  • ||

    If this stands, I don't see how child porn laws are constitutional.

  • ||

    many child porn laws are not strict liability.

    iow, if the minor didn't look like a minor, it's not a violation (at least under many child pr0n statutes).

  • ||

    if the minor didn't look like a minor, it's not a violation

    That's not true unless the possessor also didn't know (or should not have reasonably known) that the person in the photo was a minor.

  • ||

    again,depends on the child pr0n law. you are making a sweeping statement that ignores that SOME child pr0n laws are strict liability and some aren't

  • sarcasmic||

    It's not pron, it's prawn.

  • ||

    only if you live in district 9

  • MNG||

    Hey, what are the odds of two people named John posting the exact same comment at the exact same time?

  • Lib'tarian||

    Million to one.

  • ||

    it's part of the lattice of coincidence

  • T||

    I don't think you can get convicted without intent on CP charges.

  • ||

    If this stands, I don't see how child porn laws are constitutional.

    I'm 90%+ certain that Federal law requires "knowing" possession of child pornography to be prosecuted. That's why a number of people have successfully gotten their convictions for having child pornography in their computers' internet caches overturned. They convinced courts that they didn't know computers typically automatically cache images viewed during websurfing.

  • Fluffy||

    Our SCOTUS will overrule this.

    Why?

    1. Scalia will decide that police and prosecutors are so professional these days that they can weed out unfortunate cases where there was a true absence of mens rea

    2. The other justices will read that "hundreds of thousands" of cases could be thrown out, and they'll decide that's just too "disruptive".

  • Jim||

    Good call. Does knowing you're about to get raped make it hurt any less?

    This panelist votes: NO

  • ||

    It's less startling for sure, so the warning has that goin for it.

  • Jim||

    Granted...but you also have the "dread" factor. At least with a "haHA!" suprise rape, you don't have the months of wallowing in agony waiting for it to happen.

  • Warty||

    This is probably the correct answer.

  • Bingo||

    Fluffy wins today's "justified cynicism" award

  • cynical||

    Contrariwise, this is a state law, and apparently it is out of sync with most other state laws, so SCOTUS might do the right thing just because it is conformist and safe and doesn't threaten federal power.

  • Jennifer||

    Serious question: since when is Florida the ONLY state to ignore mens rea in drug "crimes?" I thought that was the status quo today; there's damned sure no mens rea required for a drug offense in Connecticut.

    True story: a couple years ago, an 8-year-old in New Haven was arrested for drug possession -- he was walking to school, found a baggie full of interesting-looking rocks (when I his age, I'd've thought they were uncut diamonds), showed his new pretty rocks to the teacher at school -- and the cops came in and arrested the little boy for possession of crack. Though the shithead cop later told the newspaper "We arrested him for his own good, to give him the counseling he needs." No, you worthless sadistic piece of shit, little kids do not need "counseling" for their tendency to pick up shiny things in the street, though the boy might well need counseling for the nightmares he suffered after mustachioed thugs arrested him at school for the non-crime of picking up something shiny in the street.

  • Scruffy Nerfherder||

    Just bend over, it's for your own good.

  • Number 2||

    Yes. I was wondering how the Florida law, which assumes knowing possession and requires you to prove ignorance, was different from the "constructive possession" laws that hold that everyone in the room is presumed to possess the drugs found there unless they prove otherwise.

  • LoopFiasco||

    In my state, there is still a knowledge requirement for constructive possession. They dont have to be in immediate possession, but if they have knowledge of its presence and that its illegal, they can get convicted. Comes up in car cases a lot. Cops pull over a car with multiple occupants. Find drugs on the floor or under a seat. Detain all outside vehicle. Then separate them and ask 'these your drugs we found?' They deny and say I think backseat guy had em. Bam. They just incriminated themselves. Backseat guy says front seat guy had em. Bam. People trying to avoid blame and narc on someone else and they end up fucking everyone. If they arent technically under arrest yet, Miranda need not be given.

  • Thread Jack||

    Police in Cincinnati say one of their dogs mistakenly bit a city parks employee because of what she was wearing.

    Police Sgt. Daniel Hils says when the officer assigned to Tank let him loose for a call of nature, the dog saw the woman in dark overalls resembling the K-9 training "bite suit" -- and reacted.

    I've trained my dog to bite anyone in a uniform.

  • Paging SugarFree||

    Is this guy a troll?
    Am I allowed to respond?

  • H man||

    In all fairness she was also the same size as the bite suit.

  • ||

    All my doggies did that naturally. At least, they certainly wanted to.

  • SPLENDA®||

    You have my permission.

  • ||

    yer such an ASSpertame

  • Solanum||

    ♫ To stop those monsters 1-2-3,
    Here's a fresh new way that's trouble-free,
    It's got Paul Anka's guarantee...
    Guarantee void in Tennessee.
    Just don't look! Just don't look!
    Just don't look! Just don't look!
    Just don't look! Just don't look! ♫

  • pilight||

    "Hundreds of thousands of cases" since 2002? That's a minimum of 60 cases per day, seven days a week, 365 days per year, for nine years.

    Either that number is a little high (so to speak) or it's absolute proof that the punitive approach doesn't work to reduce usage rates.

  • ||

    How does strict liability for statutory rape meet the requirements noted by Scriven?

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