Back in 2002, Florida passed a law that makes finding a person criminally liable for a drug-related offense easier than just about any other state.
While every state prohibits possession and sale of certain drugs, an essential element of those crimes is “mens rea,” or “guilty mind.” Essentially, it means that to convict someone of virtually any crime, the prosecution most prove that the defendant acted with some type of criminal intent. In drug cases, this requires a showing that the defendant knew that the substance he possessed or sold was, in fact, an illegal drug. Note, this usually means they only need to know that they possessed a specific drug. It does not require that they know the drug was, in fact, illegal. So, if somebody believes, for whatever reason, that cocaine is legal, and happens to be in possession of cocaine (and knows that the substance in their possession is cocaine), they are criminally liable, despite the fact that they believed it was legal.
On the other hand, if the defendant possessed a drug, and reasonably believed that it was something else, they will not be liable. For example, suppose that cocaine is being smuggled into the country in boxes of baking soda. One of the boxes inadvertently finds its way onto a grocery store shelf. A customer at the store buys the box containing the cocaine, intending only to buy baking soda, and believing that that’s what the box contained, which is a perfectly reasonable assumption, under the circumstances.
If they were arrested for cocaine possession later on, they would probably not be held liable, assuming the never found out that the box contained cocaine.
Under this Florida law, however, the rules would be changed: anyone in possession of an illegal drug can be found guilty of drug possession, even if they did not know or believe that they were in possession of an illegal drug. So, the person who innocently buys a box of cocaine at the grocery store, thinking its baking soda, could theoretically be found guilty of cocaine possession, despite the fact that they had absolutely no intention of breaking the law. This effectively makes drug possession in Florida a strict liability crime.
This would be a radical change, and, as one might expect, it’s hardly without controversy. In fact, it’s so controversial that a Florida appellate court has asked the state’s supreme court to take up the case, to resolve the issue of the law’s constitutionality. This is something that rarely happens, as it’s usually the losing party in a lawsuit or appeal who asks a higher court to hear the case.
The key issue is whether or not the law violates a person’s right to due process of law. A person cannot be deprived of life, liberty, or property without due process. And one essential element of due process is that defendants have notice of the fact that the conduct they’re engaging in is illegal. Imagine of your state legislature passed a bill that prohibited, say, wearing blue shirts, but kept this law a secret – they didn’t tell anyone that the law had passed, and didn’t even publish it. Obviously, it would be incredibly unfair to punish a person for breaking this law when no member of the general public had any way of knowing that the law existed.
Here, we aren’t dealing with a secret law. But we are dealing with a law that can punish people who have no knowledge that they’re doing anything illegal, and no intent to break any laws. Most people would view this as incredibly unfair.
I would agree with them.
More importantly, however, I think that laws like this are symptomatic of how completely off-the-rails the “war on drugs” has gone, and how getting “tough on crime” has superseded any consideration of whether or not a law is actually good policy.
Personally, I think the best way to deal with drugs is not to punish the hypothetical baking soda buyer, but to actually evaluate our policies in a rational, objective manner, to see what has worked and what hasn’t. This might even require studying what (*gasp*) other countries have done to address their drug problems, and assessing their effectiveness, and the feasibility of implementing some of those ideas at home.
Unfortunately, the war on drugs seems to have become an entity unto itself. It exists primarily to perpetuate its own existence. The role of private, for-profit prisons in incarcerating drug offenders certainly isn’t helping the matter.
However, politicians seem to be engaging in the “sunk cost fallacy.” This is the belief that you can’t stop an unsuccessful project because you’ve already spent a huge amount of time and money on it, and quitting now would mean that it’s all been wasted. But here’s the thing: at some point, we’ll have to acknowledge that our current approach to the drug problem is untenable, and attempting to eradicate recreational drug use is futile. Continuing down this course will simply mean sinking more cost into an effort that is incredibly unlikely to succeed. Basically, if you’re going to fail, it’s best to fail quickly, so that you can move on to something that’s more likely to succeed. This is especially good advice with respect to the war on drugs. There’s no doubt that we need policies in place that address the drug problem, and minimize the negative effects of illegal drugs on society.
This might mean taking a less punitive approach to drug addicts, and instead treating them as people who suffer from an illness, and need medical help, as opposed to treating them as criminals in the same class as murderers. Unfortunately, I don’t expect this to happen anytime soon.