The knowledge element in drug cases: some final thoughts on Shelton and Adkins.

• Author: Sanders, Richard

In Chicone v. State, 684 So. 2d 736, 745-46 (Fla. 1996), the court held "knowledge of the illicit nature of the substance" is an element of possession offenses under [section] 893.13. The court reaffirmed that holding in Scott v. State, 808 So. 2d 166 (Fla. 2002). Shortly after Scott, the legislature enacted [section] 893.101, which provides:

(1) ... Scott ... and Chicone ... were contrary to legislative intent.

(2) ... [K]nowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) [When] a defendant asserts th[is] affirmative defense[,] possession of a controlled substance ... shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance....

In Shelton v. Secy, Dep't of Corrections, 802 F. Supp. 2d 1289, 1293 (M.D. Fla. 2010), reversed, 691 F.3d 1348 (11th Cir. 2012), cert. denied sub nom, Shelton v. Crews, __ U.S. __, 133 S. Ct. 1856 (2013), a federal trial judge declared that, in light of [section] 893.101, "section 893.13 is unconstitutional on its face." (1) Two state circuit court judges soon agreed; all other Florida lower court judges disagreed. (2) In State v. Adkins, 96 So. 3d 412 (Fla. 2012), a fractured court rejected the Shelton analysis and held [section] 893.13 was constitutional. The federal circuit court reversed Shelton on procedural grounds, without reaching the merits. (3) The U.S. Supreme Court denied certiorari in both cases. (4)

This article analyzes Shelton and Adkins. The article argues that the Shelton court started with two flawed premises and then reasoned, in a logical fashion, to a flawed conclusion. The author believes that, while the Adkins court reached the right result, some of the analysis in the opinions is flawed.

The basic problem is the use of "offense analysis" rather than "element analysis" to analyze such issues. By its nature, offense analysis fails to recognize the complexity in issues such as the one addressed here; thus, using offense analysis can lead to erroneous results. Courts should always use element analysis when addressing such issues.

Element Analysis and Offense Analysis

Element analysis, championed by the Model Penal Code, is as follows: There are five generic elements in all criminal offenses: actus reus, mental element, harmful result, causation, and attendant circumstances (e.g., the victim was under a certain age). Not all offenses have all five elements. But each physical element has a corresponding mental element, and "different elements of the same offense can require different mental elements." (5) There are five possible mental elements: intent (or "purpose," in the Model Penal Code), knowledge, recklessness, negligence, and "no element" (i.e., strict liability). (6)

The actus reus element always has a mental element of intent or knowledge: The state must prove one intentionally or knowingly did something. Even with offenses that punish omissions (e.g., failure to register as a sex offender), the state must prove one intentionally or knowingly did the act that triggers the registration requirement (e.g., for sex offenders, changed residence).

The recklessness and negligence mental elements apply to either a causation element or an attendant circumstances element. If causing harm is an element of an offense, the state must prove one committed the act and either: 1) intentionally or knowingly caused the harm; or 2) recklessly or negligently ignored the possibility that the harm might occur. If the existence of an attendant circumstance is an element of the offense, the state must prove one either 1) knew that the circumstance existed; or 2) recklessly or negligently ignored the possibility that the circumstance existed.

The no-element mental element (i.e., strict liability) invariably applies to an attendant-circumstance element. (7) An attendant-circumstance element is a strict-liability element if the state only needs to prove that the circumstance existed. It is irrelevant, not only that the defendant did not know the circumstance existed, but also that he or she believed in good faith and for good reason that the circumstance did not exist.

Offense analysis assumes all offenses have a singular mental element. The most common and troublesome aspect of offense analysis is the use of the terms "specific intent" and "general intent." While courts continue to use these terms, this distinction is "an artificial irrationality widely condemned by the authorities" (8) because the distinction fails to recognize the reality of offenses with multiple elements. "[O]ffense analysis can accurately describe the culpability elements of an offense only if the same level of culpability (e.g., intention) [applies to] each element of an offense. But where different culpability levels are appropriate for different elements, offense analysis ... obscure[s] but do[es] not eliminate the confusion." (9) As discussed below, another troubling example of offense analysis is the way it defines a strict-liability offense--this was the primary flaw in Shelton.

Two Flawed Premises in Shelton

The first flawed premise in Shelton is that [section] 893.101 "eliminate[d] mens rea as an element of [the] drug offense [s]" in [section] 893.13, rendering those offenses strict-liability offenses. (10) The second flawed premise is that "a strict liability offense has only been held constitutional if: (1) the penalty imposed is slight; (2) a conviction does not result in substantial stigma; and (3) the statute regulates inherently dangerous or deleterious conduct." (11)

As to the second flawed premise, although courts recognize that there are due process limits on a state's ability to create strict-liability offenses, they have not laid out those limits in any detail. (12) But there is no three-part test to determine whether a statute creating a strict-liability offense is valid. The article discusses this second flawed premise after discussing the first flawed premise, which concerns the meaning of "strict-liability offense."

* Flaw One: The Meaning of "Strict. Liability Offense"--Using element analysis, the proper definition of a strict-liability offense is an offense that has a strict-liability element. If one uses this definition, then the Shelton court was correct in concluding that [section] 893.101 rendered the offenses in [section] 893.13 strict-liability offenses. As discussed below, [section] 893.101 eliminated a mental element for one of the elements in the [section] 893.13 offenses, rendering that element a strict-liability element (and rendering the offenses strict-liability offenses). But this conclusion has no constitutional significance; many offenses that are clearly constitutional are strict-liability offenses under the proper definition.

The Shelton court did not use the proper definition. Although the court did not define what it meant by "strict liability offense," it implied a definition --an offense that has "[no] mens rea element." (13) The implication here is that, after [section] 893.101, the offenses in [section] 893.13 have no mental element at all.

Element analysis exposes the flaw: An offense with a strict-liability element still has an actus reus element with a mental element of knowledge or intent. As the U.S. Supreme Court has recognized, if we define a strict-liability offense as being one that has no mental element at all, then this "use of the term 'strict liability' is really a misnomer...." (14) It is also an example of offense analysis. The unstated premise is that a strict-liability offense has a singular mental element (albeit a "no-element" element).

Many Florida offenses have strict-liability elements. Sex offenses involving minors do not require proof of knowledge of the victim's age. (15) To prove residential burglary, the state need not prove one knew that the structure entered was a dwelling. To prove grand theft, the state need not prove one knew the stolen property was worth more than $300. In firearm and weapon offenses, the state need not prove one knew the item possessed or carried was considered a firearm or weapon. Properly defined, "strict-liability offense" includes many offenses, the constitutionality of which is unquestioned.

As to the offenses in [section] 893.13, start with the most basic offense: possession of a controlled substance. This offense has an actus reus...