Overcriminalization: Attacking a Dangerous Precedent

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What happens when the Florida legislature eliminates the centuries-old requirement that the government must prove that an accused person acted with criminal intent before he may be punished as a criminal?  It risks making almost anyone a criminal – both those who intend to commit a crime and those who do so by accident.  And that’s wrong.  It’s wrong as a matter of policy, and it’s wrong as a matter of history.

In high school civics class, and from law-and-order television shows and films, every American has learned that in our criminal justice system a person accused of a crime is always presumed innocent until proven guilty.  Similarly, the government bears the burden of proving every element of the crime beyond a reasonable doubt.  Likewise, we have also learned that in order to be a criminal one must act with criminal intent – what lawyers call mens rea.

That’s why an act by the Florida legislature is of concern to so many criminal-law experts. The Florida legislature decided in 2002 to eliminate from almost every drug possession case one of the most essential safeguards that the rule of law provides to the innocent.  In such cases, the State of Florida need no longer prove that the accused acted with any form of criminal intent.  The government need not prove that the individual even knew that what he possessed was drugs in order to send him to decades in prison.

At first blush, that may not sound like a bad thing given the damage drugs and drug trafficking do to America.  But as one Louisiana court pointed out in a similar case, it “requires little imagination to visualize a situation in which a third party hands the controlled substance to an unknowing individual who then can be charged . . . and . . . convicted without ever being aware of the nature of the substance he was given.”  This would be a pretty easy way for bad guys to set up anyone they did not like.

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Anyone who thinks this is far-fetched need only consider the story of Cheye Calvo, the mayor of Berwyn Heights, a small Maryland town just inside Washington’s Capital Beltway. The story made national news because Prince George’s County used a SWAT team to storm through Mayor Calvo’s front door, shoot his two Labrador retrievers, and interrogate the bound and half-naked mayor for two hours while he sat in the presence of his mother-in-law, with the dogs’ bloody carcasses surrounding them.  Prince George’s law enforcement conducted the raid because an overnight carrier had delivered a package containing marijuana to Mayor Calvo’s doorstep.  Calvo took the package inside with him when he brought his dogs in from a walk.  Moments later, the Prince George’s County SWAT team was inside shooting Mayor Calvo’s dogs, seizing the unopened package, and handcuffing the mayor himself.

Fortunately for Mayor Calvo and everyone else in his house, Maryland, unlike Florida, still requires the government to prove that a person acted with criminal intent.  In other words, Maryland law enforcement officials were required to look for evidence that the mayor, his wife, or his mother-in-law knew the package contained contraband and possessed it nevertheless, that is, with criminal intent.

As a result, Prince George’s county eventually cleared Mayor Calvo (and, one should add, agreed to an undisclosed settlement of his claims arising from the SWAT team’s hyper-aggressive tactics).  The investigation determined that a drug ring had been using the overnight carrier to drop off packages of drugs at the residences of innocent third parties and sending another member of the ring to pick up the packages.   But if the same thing had happened in Florida, the mayor could have been sent to prison without the government presenting any evidence that he knew drugs were in the package.

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Fortunately, a federal judge in Florida is also concerned about the law. She is affording those concerned about the dangers of overcriminalization a chance to head off grave injustices in this whole class of Florida prosecutions. A friend-of-the-court brief (PDF) submitted in the case of Mackle Shelton by the National Association of Criminal Defense Lawyers (NACDL), 38 professors of law, and four other organizations details the dangerous – and arguably unconstitutional – precedent that the Florida law would set.  These friends of the court don’t dispute that criminal law should enable government officials to investigate, prosecute, and punish bad guys.

But the Florida legislature seems to have forgotten that criminal law has two other purposes that are equally as important.  First, criminal law should be written in a clear, definite, and precise manner that limits the power of government officials to make criminals of whomever they may choose.  Second, criminal law should be defined in a manner that clearly informs honest Americans who want to remain law-abiding what they must do to avoid becoming a criminal.

Laws that enable the government to convict and punish individuals who act without criminal intent fail to fulfill these two essential purposes of criminal law.  Such laws invite abuse and injustice.  Regardless of what the federal court decides in the case of Mackle Shelton about the constitutionality of the Florida legislature’s act, the legislature made a grave and fundamental error.

Source material can be found at this site.

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