Florida’s “Strict-Liability” Drug Law Found Unconstitutional

Are there any constitutional limits on the power of a legislature to restructure state-of-mind elements as affirmative defenses? The Supreme Court has suggested that such limits do exist, but has not clearly delineated what they are. However, an interesting habeas case now moving through the lower federal courts may provide a good opportunity to clarify this uncertain area of the law.

The case has emerged from a tug-of-war between the Florida legislature and the courts over the state’s basic drug-trafficking offense. Although the offense did not include any express state-of-mind element, the Florida Supreme Court held as a matter of statutory construction in 1996 that the state was required to prove knowledge of the illicit nature of the substance involved in the offense. The legislature responded in 2002 by amending the statute and clearly indicating that knowledge was not required; rather, the legislature specified, lack of knowledge must be proved by the defendant as an affirmative defense. (Apparently, only one other state, Washington, similarly dispenses with a state-of-mind element for drug trafficking.) Now, a federal district court has ruled on a habeas petition by a defendant convicted under the Florida statute, holding in Shelton v. Secretary, Department of Corrections (No. 6:07-cv-839-Orl-35-KRS) that the new version of the offense facially violates the Due Process Clause.

I’m sympathetic to the idea of constitutional limits on the legislature’s ability to create strict-liability crimes, but the court’s reasoning in Shelton strikes me as something less than compelling.

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The Law in Shakespeare’s Works

Last Friday I had the pleasure of listening to an interview on WPR with Stephen Marche, author of the book, How Shakespeare Changed Everything.*

During the interview, Mr. Marche talked about how many English words were first used by Shakespeare.  Lawyers can thank Shakespeare for words like “negotiate”, “compromise”, and “circumstantial”.** The conventional wisdom is that Shakespeare invented those words, although Mr. Marche acknowledged that Shakespeare may really have been the first person to write down words that were already in use at the time.  (I think the latter may be more likely, although I do not claim to be an expert on this matter.)

The interview got me thinking about references to the law in Shakespeare.  A quick search online referred me to a 2009 conference at the University of Chicago Law School on “Shakespeare and the Law.”  Another quick journal and law review search on Westlaw showed a number of references to Shakespeare.

Do any of our readers have a favorite Shakespeare passage or play?  What are your thoughts on Shakespeare and the law?  What influence, if any, has Shakespeare had on the public’s view of the law and lawyers?  Did Shakespeare use legal concepts correctly in his plays?  Do you think that Shakespeare really coined all the words for which he is credited?  Is there anything that lawyers can learn from reading Shakespeare?

I very much look forward to reading Mr. Marche’s book.

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Gov. Walker Tacks for the Middle, Particularly on Education Issues

Some politicians say they don’t pay attention to what polls show. Gov. Scott Walker is one of them. Most of those who say that actually do pay attention to polls. I assume Walker is one of them.

That’s certainly as good a way as I can think of to explain what is clearly an effort by Walker to move toward the middle on at least some issues, particularly education quality matters. In just over a half year in office, Walker has become an especially polarizing figure. Many on the right think he has changed the long-term future of Wisconsin for the better and praise him enthusiastically. Many on the left think he is so bad that they will succeed in bringing him to a re-call election next year. Some polls show that there are stronger feelings about Walker, both pro and con, with little middle ground, than is true for any other governor currently.  

But, ultimately, in a state that is as politically split as Wisconsin, it is valuable, if not essential, to have support among many of those in the middle. And Walker’s overall poll numbers are down in the light of the ferocious battle over the state budget.

So maybe I shouldn’t have been surprised when Walker took more moderate positions in an interview I did with him on July 1 on education issues. He referred several times to his desire to build consensus on some major issues and said it was “the Wisconsin way” to get a wide range of people together to work on issues. He talked about how he was building a strong relationship with Tony Evers, the state superintendent of public instruction, on matters such as a new school accountability system, new state tests, and an initiative aimed at increasing the overall quality of the work of principals and teachers. The generally-liberal Evers has been backed by teachers unions and was strongly critical of some major parts of the budget proposals from Walker, a conservative Republican.

Walker’s comments and subsequent conversations with him and Evers led to a story I wrote for the July 10 Milwaukee Journal Sentinel and a column I did on Walker’s education thoughts on July 17. The audio of my interview with Walker is availabkle on the latter Web page. 

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