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PANAMA CITY -Florida is the only state in America with drug trafficking laws that don’t require prosecutors to prove a defendant actually knew they were trafficking drugs, but all that could change in the wake of a ruling by a federal judge in Orlando last month.

Calling the Florida Drug Abuse Prevention and Control Act "draconian," U.S. District Court Judge Mary Scriven found the law "is unconstitutional on its face" because it imposes severe penalties without requiring evidence the defendant knew they were trafficking drugs.

State courts are not bound by Scriven’s opinion, but it’s persuasive, said Bob Jarvis, a constitutional law professor at the Shepard Broad Law Center at Nova Southeastern University. A state court judge in Miami threw out cases against 39 defendants Wednesday based on Scriven’s order, but stayed the order a week to give prosecutors a chance to appeal.

"It’s a good opinion, but it’s just one opinion," Jarvis said. "The law is still in existence; it has not been struck down."

When it comes to convicting drug trafficking suspects Florida prosecutors have it easy, Jarvis said.

In 2002, the Florida Supreme Court made a ruling that interpreted the Legislature intended for prosecutors to prove intent of suspects when it created Florida’s drug trafficking statute. Proving a defendant’s intent is a staple of American criminal law, but there are some crimes, called strict liability offenses, where intent need not be proved.

A statutory rape conviction, for instance, doesn’t hinge upon whether a defendant was aware of the age of the person he or she slept with, Jarvis said. But compared to Florida’s drug laws, which often attach lengthy mandatory minimum sentences, the penalties and stigmas associated with every other strict liability offense are mild, Jarvis said.

Prosecutors statewide got an advantage later in 2002 when, in response to the high court’s ruling, the Legislature rewrote the law, clearly stating there should be no requirement to prove intent in drug trafficking cases, but a defendant could argue a lack of intent as a valid defense.

The Legislature, in effect, took the burden of proof away from the state and put it on the defendant, according to one state court interpretation. "Taking that burden off of Florida prosecutors has really changed criminal law," Jarvis said.

"There are lots of ways to prove intent," Jarvis said. That’s why "prosecutors in 49 other states and the District of Columbia are able to put people in jail for drug trafficking."

The question for society and the Legislature, as Jarvis sees it, will be this:

"Do you think that drug crimes are so heinous that you’re willing to go against," the vast majority of criminal law?

The Legislature that changed the law in 2002 was "extremely conservative," Jarvis said, but not as conservative as the current Legislature.

Pubdate: Sat, 20 Aug 2011
Source: News Herald (Panama City, FL)
Copyright: 2011 The News Herald
Author: Chris Olwell, News Herald Writer

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