Are there any constitutional limits on the power of a legislature to restructure state-of-mind elements as affirmative defenses? The Supreme Court has suggested that such limits do exist, but has not clearly delineated what they are. However, an interesting habeas case now moving through the lower federal courts may provide a good opportunity to clarify this uncertain area of the law.
The case has emerged from a tug-of-war between the Florida legislature and the courts over the state’s basic drug-trafficking offense. Although the offense did not include any express state-of-mind element, the Florida Supreme Court held as a matter of statutory construction in 1996 that the state was required to prove knowledge of the illicit nature of the substance involved in the offense. The legislature responded in 2002 by amending the statute and clearly indicating that knowledge was not required; rather, the legislature specified, lack of knowledge must be proved by the defendant as an affirmative defense. (Apparently, only one other state, Washington, similarly dispenses with a state-of-mind element for drug trafficking.) Now, a federal district court has ruled on a habeas petition by a defendant convicted under the Florida statute, holding in Shelton v. Secretary, Department of Corrections (No. 6:07-cv-839-Orl-35-KRS) that the new version of the offense facially violates the Due Process Clause.
I’m sympathetic to the result, but the court’s reasoning strikes me as a stretch.
The court relies almost entirely on statutory interpretation cases from the United States Supreme Court. Although one can find plenty of language in these cases about the traditional importance of mens rea as a precondition to criminal punishment, the language was not written with the purpose of creating rules of constitutional law. It is one thing to rely on background ideals of criminal law as a basis for filling in statutory gaps, but quite another as a basis for overturning a clear expression of legislative intent.
Another difficulty with relying on the statutory interpretation cases is that they do not yield any clear rule. The district court in Shelton cobbled together an analytical framework from the statutory cases (“Thus, under Staples and its progeny, the tripartite analysis for evaluating a strict liability offense under the strictures of the Constitution involves consideration of: (1) the penalty imposed; (2) the stigma associated with conviction; and (3) the type of conduct purportedly regulated.” (13)), but it seems rather mushy and is sure to raise the hackles of formalist judges (and justices) on the higher courts.
In terms of the application of the “tripartite analysis” to the Florida statute, the court had no difficulty finding that the penalties and stigma associated with a drug-trafficking conviction were quite substantial indeed. With a maximum prison term of fifteen years for even a first-time violation, it is hard to disagree with that assessment.
The “type of conduct” prong is more complicated, for there is a long tradition of strict-liability criminal laws in the “public welfare” area. The logic here is that there are certain activities and products that present a sufficiently obvious danger to the public that regulation (including through criminal law) should be expected, and we can fairly place the burden of figuring out the requirements of the law on the people who engage in the activities or handle the products. For instance, the Shelton court observed,
Knowledge of the hazardous character of substances has also been sufficient to sustain liability in the shipping context. See Int’l Minerals, 402 U.S. at 564. In this context, because “dangerous or deleterious devices or products or obnoxious waste materials are involved, probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them has to be presumed to be aware of the regulation” requiring classification of property on shipping papers. Id. at 565. (21)
Narcotics would seem to qualify as such a hazardous substance that may be regulated through strict-liability criminal laws. However, the Florida law, at least as the Shelton court understood it, does not even require knowledge that the substance at issue is a narcotic or otherwise hazardous. The court posed this hypothetical:
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. (28)
If the statute does not require knowledge of the presence of the substance at issue — at least at the level of knowing, for instance, “there is a white powder of unknown provenance in my book bag” — then the statute does seem distinguishable from the public-welfare statutes in earlier cases. On the other hand, I’m not so sure this is really the thrust of what the legislature did in 2002. As I understand the back-and-forth between the Florida Supreme Court and the legislature, the question was whether the state was required to prove knowledge of the illicit nature of the substance, not the presence of the substance. If that’s right, then the statute could still be interpreted to required knowledge of the presence of the substance, which might bring the statute back within the public-welfare category (albeit with much harsher penalties than are traditionally associated with public-welfare offenses).
In any event, all of this analysis is premised on the assumption that the Florida statute is a strict-liability law. But is it really? The fact that the legislature contemplated an affirmative defense for lack of knowledge removes the law from the pure strict-liability category; it is a hybrid of sorts. As long as we are doing the constitutional analysis in a functionalist way, it seems that the availability of the affirmative defense is something that should figure into the test — maybe we should have a “quadpartite analysis,” instead of a tripartite analysis.