Does Maryland's crime of distributing drugs require proof that the person knew what they were handling?

Plain-English summary

A district counsel for the Immigration and Naturalization Service asked the Attorney General in 1990 a technical but consequential question: does Maryland's crime of unlawfully manufacturing, distributing, or dispensing a controlled dangerous substance, under Article 27, §286(a)(1), require the government to prove that the defendant knew what they were dealing with? The question mattered for immigration reasons. A non-citizen can be deported for a state drug conviction only if the state offense contains all of the elements of the comparable federal crime, and the federal statute punishes acting "knowingly or intentionally." Maryland's statute, by contrast, does not spell out any mental state.

The Attorney General concluded that knowledge is an element of the Maryland offense even though the words are not in the statute. He leaned heavily on the Court of Appeals' 1988 decision in Dawkins v. State, which read a knowledge requirement into Maryland's parallel drug possession law. Dawkins reasoned that although the legislature can create strict-liability crimes, those are usually minor regulatory offenses with light penalties, while drug crimes are serious offenses carrying heavy prison terms, so courts should not presume the legislature meant to punish someone who had no idea a substance was a drug. Because distribution and manufacturing are punished even more severely than possession, and because courts in other states with nearly identical statutes had required proof of knowledge, the opinion predicted Maryland's courts would do the same. It added, quoting Dawkins, that this knowledge can be proven by circumstantial evidence.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Maryland's controlled dangerous substances offenses were later recodified out of Article 27 into the Criminal Law Article, and the immigration statute cited here (then 8 U.S.C. §1251) has since been renumbered and amended. The opinion was also a prediction of how the Court of Appeals would rule, not a court holding. Treat the specific section numbers and the deportation framework described here as the law as it stood in 1990, and check current statutes and case law before relying on any of it.

Common questions

Does Maryland's drug distribution crime require proof that the person knew they had drugs?
Under this 1990 opinion, yes. Even though Article 27, §286(a)(1) did not spell out a mental state, the Attorney General concluded that knowledge is an element of the offense, so the government would have to show the defendant knew the substance was a controlled dangerous substance.

Why does a statute that never mentions "knowledge" still require it?
Because Maryland courts had already read a knowledge requirement into the closely related drug possession statute. In Dawkins v. State, the Court of Appeals reasoned that serious drug crimes, unlike minor regulatory offenses, are not strict-liability crimes, so a mental element should be presumed. The opinion predicted the same reasoning would apply, with even more force, to the more severely punished distribution and manufacturing offense.

Why did the Immigration and Naturalization Service ask this question?
Because of how deportation works. A non-citizen can be deported for certain state drug convictions only if the state offense includes all the elements of the comparable federal offense, and the federal distribution statute (21 U.S.C. §841(a)) requires acting "knowingly or intentionally." Whether the Maryland crime required knowledge therefore determined whether a Maryland conviction could support deportation.

How can the government prove someone "knew" if they deny it?
The opinion noted, quoting Dawkins, that such knowledge may be proven by circumstantial evidence and the inferences drawn from it. Direct proof of what someone knew is not required.

Background and statutory framework

The request came from the federal immigration context. Under the immigration law then in force (8 U.S.C. §1251(a)(11)), a non-citizen was deportable for certain drug crimes, but a state conviction counted only if the state offense included all the elements of the comparable federal offense. The federal manufacturing and distribution statute, 21 U.S.C. §841(a), makes it a crime for a person "knowingly or intentionally" to manufacture, distribute, or dispense a controlled substance. Maryland's counterpart, Article 27, §286(a)(1), part of the Maryland Controlled Dangerous Substances Act, simply makes it unlawful "to manufacture, distribute, or dispense" such a substance, with no stated mental element. That statute had been modeled on the Uniform Controlled Dangerous Substances Act (Chapter 403, Laws of Maryland 1970), which likewise contained no explicit knowledge or intent requirement. So the practical question was whether Maryland courts would nonetheless treat knowledge as an element.

The answer turned on Dawkins v. State, 313 Md. 638 (1988). There the Court of Appeals considered the parallel possession offenses in §287 and, though the statute was silent on scienter, held that knowledge was an element. The Court drew a line between two kinds of crimes: strict-liability offenses, which are generally regulatory and carry light fines, and serious offenses, for which courts presume a mental element unless the legislature clearly says otherwise. Drug possession, it explained, is no mere public-welfare offense; it is a serious crime punishable by years in prison, enacted in 1970 at a time when penal reform disfavored strict liability. The Court surveyed other states with similarly worded statutes and found that most had, by judicial decision, read in a knowledge requirement.

Applying that logic, the opinion reasoned that the case for a knowledge element was even stronger for distribution and manufacturing. Those offenses carry an elaborate, severe penalty scheme (§286(b) through (f)); distributing certain narcotics such as heroin or cocaine could bring up to 20 years in prison. Courts in other states with provisions virtually identical to §286(a)(1) had held that scienter is required, notably the Washington Supreme Court in State v. Boyer, which observed that without a knowledge element even an innocent postal carrier delivering a package that happened to contain drugs would be guilty, a result the legislature could not have intended. The opinion cited similar decisions from Alaska, Iowa, Mississippi, and West Virginia, while noting one contrary Oklahoma decision. In light of Dawkins, it concluded the Court of Appeals would hold that knowledge is an element of the §286(a)(1) offense, provable by circumstantial evidence.

Citations and references

Statutes:

• Article 27, §286(a)(1), the Maryland offense of unlawfully manufacturing, distributing, or dispensing a controlled dangerous substance, with its penalty provisions at §286(b)(1) and §286(b) through (f)
• Article 27, §287(a) and §287(d), the drug possession and paraphernalia offenses construed in Dawkins
• 8 U.S.C. §1251(a)(11), the immigration deportation ground, and 21 U.S.C. §841(a), the comparable federal drug offense requiring a "knowing or intentional" act
• Chapter 403, Laws of Maryland 1970, enacting the Maryland statute after the Uniform Controlled Dangerous Substances Act
• Wash. Rev. Code §69.50.401(a), the parallel Washington statute construed in State v. Boyer

Cases:

• Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988), reading knowledge into the parallel Maryland possession offense
• State v. Boyer, 91 Wash. 2d 342, 588 P.2d 1151 (1979), holding guilty knowledge intrinsic to the distribution crime
• Thomas v. State, 522 P.2d 528 (Alaska 1974); State v. Osmundson, 241 N.W.2d 892 (Iowa 1976); Applegate v. State, 301 So. 2d 853 (Miss. 1974); and State v. Dunn, 246 S.E.2d 245 (W.Va. 1978), reaching the same result; but see Aumiller v. State, 720 P.2d 347 (Okla. Crim. App. 1986)
• Davis v. State, No. 83 (Sept. Term 1989), cited on the statute's Uniform Act origins

The opinion also quoted the Uniform Controlled Dangerous Substances Act at 9 U.L.A. Part II, at 91 (1988).

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 142-146 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CRIMINAL LAW

Drug Offenses — Knowledge is Element of Offense of Unlawfully Manufacturing, Distributing, or Dispensing Drugs

April 12, 1990

Robert S. Finkelstein, Esquire
District Counsel
Immigration and Naturalization Service

 You have requested our opinion on whether knowledge or intent is an element of the offense of unlawfully manufacturing, distributing, or dispensing a controlled dangerous substance, under Article 27, §286(a)(1) of the Maryland Code.

 For the reasons stated below, we conclude that knowledge is an element of that offense.

I

Background

 An alien is subject to deportation for certain crimes, including those involving drug-trafficking. See 8 U.S.C. §1251(a)(11). As we understand the situation, if the conviction is for a state offense, the conviction provides a basis for deportation only if the offense includes all of the elements of the comparable federal offense.

 Under federal law, it is an offense for any person "knowingly or intentionally ... to manufacture, distribute, or dispense ... a controlled substance ...." 21 U.S.C. §841(a) (emphasis added). The comparable Maryland statute, Article 27, §286(a)(1), part of the Maryland Controlled Dangerous Substances Act, makes it unlawful "for any person ... [t]o manufacture, distribute, or dispense ... a controlled dangerous substance."1

 Section 286(a)(1) was modeled after §401(a) of the Uniform Controlled Dangerous Substances Act. Chapter 403, Laws of Maryland 1970. See Davis v. State, No. 83 (Sept. Term 1989), at 5 (March 9, 1990). The language of the Uniform Act is as follows: "Except as authorized by this Act ..., it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance." 9 U.L.A. Part II, at 91 (1988).

 Thus, neither the Maryland statute nor its model contains an explicit knowledge or intent requirement. You ask whether, in our opinion, the Maryland courts would hold that knowledge or intent is nevertheless an element of this offense.

II

Analysis

A. Scienter in Possession Offenses

 In Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988), the Court of Appeals considered whether knowledge was an element of two offenses under another provision in the Maryland Controlled Dangerous Substance Act. In that case, the defendant was charged with violating §287(a), which prohibits drug possession, and of §287(d), possession of paraphernalia. The trial court ruled that knowledge was not an element of these possession offenses.2

 The Court of Appeals reversed. The Court pointed out that the statute did not "contain language indicating whether scienter is an element of the §287 offenses." 313 Md. at 645. Although the General Assembly has the power to create strict liability offenses, these offenses "are generally regulatory in nature" and "commonly involve light fines or penalties." 313 Md. at 644. By contrast, the possession offenses with which Dawkins was charged were not "mere 'public welfare' or 'regulatory' offense[s]"; rather, they were serious offenses punishable by up to four years in prison or a $25,000 fine or both. 313 Md. at 651.

 The Court elaborated as follows about the seriousness of the possession offenses:

           [P]ossession of controlled dangerous substances, both in 1970 and today, does not fall within the category of a mere "public welfare" or "regulatory" offense....

           Today, the prohibition against possessing a controlled dangerous substance, such as heroin, cocaine, etc., is regarded as a most serious offense, particularly in light of the association between illegal drugs and other crime.... The penalty for the possession offenses reflects the seriousness of the crime.... The purpose of proposing a penalty upon possession of narcotics is to punish and deter immoral behavior having serious consequences, rather than merely to regulate conduct.

313 Md. at 651.3

 The Court then surveyed decisions in other states with comparably worded statutes and found that, "even though the statutes are silent as to a scienter requirement, most of these jurisdictions have, by judicial decision, determined that knowledge is an element of the crime of possession." 313 Md. at 646-47.4 The Court so held about §287.

B. Scienter in Distribution Offenses

 The Court of Appeals' description of the seriousness of drug possession is all the more applicable to the offense of illegally manufacturing, distributing, or dispensing drugs. It is far from a mere regulatory offense. The measure of its seriousness is the severity with which it is punished. The General Assembly has enacted an elaborate and stringent series of penalties, in which the length of the term of imprisonment varies with the kind of drug involved in the offense and the criminal record of the defendant. §286(b) through (f). For instance, a person who is convicted of manufacturing, distributing or dispensing certain narcotics, including heroin and cocaine, is subject to imprisonment for up to 20 years or a $25,000 fine or both. §286(b)(1).

 Courts in other states with provisions virtually identical to §286(a)(1) have held that scienter is an element of the offense. Washington law, for example, declares it "unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." Wash. Rev. Code §69.50.401(a). In State v. Boyer, 91 Wash. 2d 342, 588 P.2d 1151 (1979), the Washington Supreme Court considered the question of "whether guilty knowledge, an understanding of the identity of the product being delivered, is a part of the crime." 588 P.2d at 1152. The court held that it was:

           The language of the statute ... provides no guidance on the issue before us. However, without the mental element of knowledge, even a postal carrier would be guilty of the crime were he innocently to deliver a package which in fact contained a forbidden narcotic. Such a result is not intended by the legislature. Accordingly, absent express legislative language to the contrary, we find in the context of this statute, its history and language, that guilty knowledge is intrinsic to the definition of the crime itself.

Id. See also Thomas v. State, 522 P.2d 528 (Alaska 1974); State v. Osmundson, 241 N.W.2d 892 (Iowa 1976); Applegate v. State, 301 So. 2d 853 (Miss. 1974); State v. Dunn, 246 S.E.2d 245 (W.Va. 1978); But see Aumiller v. State, 720 P.2d 347 (Okla. Crim. App. 1986).

 We think it highly likely, in light of Dawkins, that the Court of Appeals would likewise conclude that scienter is an element of the offense under §286(a)(1).5

IV

Conclusion

 In summary, it is our opinion that knowledge is an element of the offense of unlawfully manufacturing, distributing, or dispensing a controlled dangerous substance under Article 27, §286(a)(1) of the Maryland Code.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Jack Schwartz
                                          Chief Counsel
                                            Opinions and Advice

1
The full text of this provision is as follows:

        Except as authorized by this subheading, it is unlawful for any person:
             (1) To manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance.

The terms "manufacture," "distribute," and "dispense" are defined in Article 27, §277(p), (l), and (k), respectively. See also §277(i) (definition of "deliver"). The drugs that are "controlled dangerous substances" are delineated in §§278 and 279.

2
Section 287(a) makes it unlawful for any person "to possess or administer to another any controlled dangerous substance ...." Section 287(d) makes it unlawful for any person "to possess or distribute controlled paraphernalia ... under circumstances which reasonably indicate the intention to use such controlled paraphernalia for purposes of illegally" administering, manufacturing, distributing or dispensing the drug.

3
Contrasting the prior possession statute with §287, the Court observed that the latter was enacted in 1970, a time of reform in penal codes "express[ing] the contemporary view that disfavors strict liability offenses." 313 Md. at 650.

4
In part, the Court of Appeals, like courts in other states, relied on language in the definition of "possession" for the inference that the General Assembly had intended to require knowledge as an element of the offense. 313 Md. at 648-49. See Article 27, §277(s).

5
"Of course," as the Court wrote in Dawkins, "such knowledge may be proven by circumstantial evidence and by inferences drawn therefrom." 313 Md. at 651.