Friday, November 2, 2012

Agency Defense -Narcotics

Agency Defense & Motive
I highly recommend an article ( by one of my colleagues, Professor Elaine Chiu (,  about the role of motive in criminal law.  Prof. Chiu uses New York's  agency defense -- which holds that a steerer who acts as an agent of the  buyer, not the seller, in a drug sale is guilty as an accomplice to  possession, not sale -- to argue for greater consideration of motive in  deciding guilt and punishment.
Here is the abstract:
This  article builds on recent discussions amongst criminal law scholars on  the role that motive should play in the criminal law. It advocates for  greater consideration of a defendant's motive in all critical decisions  of the criminal justice process and offers concrete guidelines. Unlike  many other articles that focus on euthanasia or hate crime, this one  takes on the simple street sale of drugs and an unusual defense known as  the agency defense to demonstrate how the criminal law can better  accommodate motive. Created to avoid the harsh jail terms imposed on  convicted drug dealers, the agency defense pretends that steerers who  steer customers to drug dealers are the purchasing agents of the  customers. As agents, they avoid criminal liability for the sale of  drugs. Steerers, though, are not agents; instead, they are commonly drug  addicts themselves who support their addictions by working as steerers.  Instead of using a legal fiction like agency, this article proposes  that the criminal law honestly and directly accommodate the true motive  of steerers to satisfy their drug addictions. Addiction is admittedly  problematic as a motive because of its low provability and low moral  potency. One acceptable accommodation may be to mandate that judges  simply consider whether drug offenders suffer from addictions in  determining the appropriate sentence. Aside from this consideration, not  every defendant will warrant an actual reduction in sentence. That  would be up to the discretion of the judge.
The article ( is available for free download from the Social Science Research  Network.  It was originally published in the Buffalo Criminal Law  Review.  While you're at SSRN, check out Prof. Chiu's other papers ( as well as articles that I have authored (  SSRN is an effective tool for conducting research in modern legal scholarship.

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