August 24, 2012
Stressing AEDPA deference, Eleventh Circuit upholds Florida law requiring defendant to prove lack of mens rea for drug crimeLong-time readers may recall the news last year of a federal habeas ruling in Shelton v. Florida DOC, No. 6:07-cv-839-Orl-35-KRS (M.D. Fla. July 27, 2011), finding unconstitutional the operation of Florida's criminal drug laws because it made lack of mens rea an affirmative defense for a defendant to prove rather than require state prosecutors to prove a defendant was knowingly involved in an illegal drug transaction. Today's follow-up comes via this Eleventh Circuit ruling in Shelton, which starts this way:
A Florida state prisoner petitioned for federal habeas relief, challenging the constitutionality of a Florida statute that altered the mens rea requirement for state drug offenses. The district court, finding a due process violation, granted relief. We conclude that the state court did not unreasonably apply clearly established federal law, as determined by the U.S. Supreme Court, and reverse.
Here is a segment of the Eleventh Circuit panel's substantive analysis:
In order for Shelton to prevail here, he must be able to point to Supreme Court precedent clearly establishing that the Due Process Clause forbids the partial elimination of mens rea as an element of crimes analogous to those in Florida’s Drug Abuse Prevention and Control Act, beyond any possibility for fairminded disagreement. That is a tall order, and as it happens, an impossible one....
[A] fine-grained parsing of Supreme Court precedents is unnecessary to resolve our constricted inquiry. One very general principle can be distilled from the Court’s cases in this area: legislatures have “wide latitude . . . to declare an offense and to exclude elements of knowledge and diligence from its definition,” but they still must “act within any applicable constitutional constraints” when defining the elements of a criminal offenses. The Court has not drawn lines around this principle sufficient to dictate a particular result of the Florida court here, especially considering that Florida’s elimination of mens rea was only partial. The Supreme Court has acknowledged that its work in this area has only just begun, noting twice that no court “‘has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.’” Absent a Supreme Court case directly on point or a case so closely analogous that fairminded jurists would agree that its rule must extend to the present scenario, the Court’s acknowledgment of uncertainty in this key principle effectively answers the AEDPA inquiry in Florida’s favor.
Today, we need not march through all Supreme Court cases to prove the negative that the Supreme Court has never addressed Shelton’s issue head-on, much less addressed it in his favor. It suffices to note that only once, in Lambert v. California, has the Supreme Court held a criminal provision unconstitutional under the Due Process Clause for failing to require sufficient mens rea. Lambert was an as-applied challenge to a Los Angeles municipal ordinance requiring felons to register with the city. The Court held that because failing to register is “wholly passive,” the defendant lacked any notice whatsoever of her wrongdoing, violating her due process rights. The actions criminalized by the Florida Act as amended are sufficiently distinguishable — requiring affirmative acts of selling, manufacturing, delivering, or possessing, in addition to knowledge of the presence of the substance, all with an affirmative defense of lack of knowledge available — that we cannot say the state courts were unreasonable not to import Lambert’s reasoning into this very different context.
August 24, 2012 at 04:13 PM | Permalink
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An "as applied" challenge to a constructive possession case may work under the right facts--even in an AEDPA case.
A lack of mens rea, of course, is a problem when we're talking about criminal liability. This decision is correct. The implications generally are a cause for concern and caution.
Posted by: federalist | Aug 24, 2012 5:00:21 PM
I think this is probably right. It's important to know the statute does have a mens rea requirement, knowledge of having a substance. There is nothing that clearly states due process requires knowledge of what the substance is.
Ultimately I agree with the district court that it violates due process, but isn't established enough (the case law on when due process requires a mens rea and when strict liability is ok is woefully lacking) to withstand AEDPA deference.
Posted by: Matt | Aug 24, 2012 6:45:04 PM
IF your charging and convicting someone then you better be damn sure they KNOW what they had.
Posted by: rodsmith | Aug 24, 2012 9:15:26 PM
Whoa, I must be high. I actually agree with Federalist. (first time since he posted on this blog) I would add this shows the problems with AEDPA deference.
Posted by: ? | Aug 24, 2012 9:36:22 PM
? Well, if you don't agree with me on things, I hope you will take me on. As Doug's law prof friend found out, I can be a very tough adversary.
On the back and forth a few months ago over Frye/Lafler, the good prof accused me of using a flame-thrower. But then he couldn't back things up on the merits.
Posted by: federalist | Aug 25, 2012 9:50:27 AM