Overcriminalization: Attacking a Dangerous Precedent

Brian Walsh / February 04, 2011

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. (more…)