After Chicone: blasting the bedrock of the criminal law.

• Author: Summa, Richard M.

In Chicone v. State, 684 So. 2d 736 (Fla. 1996), the Florida Supreme Court recited a bedrock principle of criminal law. Mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence. (1) In other words, mens rea, or guilty mind, is a defining characteristic of criminal conduct. Criminal offenses that require no mens rea are generally disfavored. Some indication of legislative intent, express or implied, is required to dispense with mens rea as an element of a crime. (2) This article notes that criminal offenses lacking mens rea are not unconstitutional per se, but concludes that such offenses must be regarded as strict liability or public welfare offenses and may not be punished as felonies.

Jerry Jay Chicone III, was convicted of, inter alia, the third degree felony of possession of cocaine. He argued, inter alia, that the trial court erred in refusing to instruct the jury that the state must prove the mens rea element of knowledge of the illicit nature of the substance. The Florida Supreme Court agreed with Chicone, holding that the trial court erred in failing to instruct the jury that the state must prove that the defendant had knowledge of the illicit nature of the substance, thus, satisfying the mens rea requirement of the criminal law.

The holding of Chicone is multifaceted: 1) the plain language of the possession of cocaine statute imposes no mens rea requirement; (3) 2) absent mens rea, possession of cocaine is a strict liability offense encompassing innocent conduct; (4) 3) the imposition of felony punishment for a strict liability offense violates due process; (5) 4) it is presumed that the legislature did not intend to enact an unconstitutional statute; (6) 5) it is necessary, therefore, to save the constitutionality of the possession of cocaine statute by inferring, as a matter of judicial construction, the mens rea element of knowledge of the illicit nature of the substance. (7)

Some may argue that Chicone did not hold the possession of cocaine statute unconstitutional. Rather, the Florida Supreme Court simply construed the statute in a manner so as to avoid the constitutional question. This view ignores the first canon of statutory interpretation which states that the plain language of a statute shall be given effect if the intent of the legislature is clear and unambiguous. (8) In Chicone, the Supreme Court acknowledged that the plain language of the statute imposed no mens rea requirement. That being the case, no judicial construction was required or even authorized. (9) It was only the finding of a constitutional defect which authorized the Supreme Court to engage in the judicial construction necessary to support its ultimate holding--that knowledge of the illicit nature of the substance is an element of the possession offense.

After Chicone, the Florida Legislature came to the view, at least with respect to controlled substances, that the mens rea requirement, the bedrock principle of Anglo-American criminal law, was no longer a sound public policy. The legislature dispensed with the mens rea requirement by enacting F.S. [section] 893.101. Section 893.101(1) states that the holding of Chicone --that the state must...