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The purchase of illegal drugs by an undercover police officer is commonly known as a “buy and bust” operation. In the twenty-first century, the stakes in the longstanding war on drugs are high as law enforcement and national security agencies join forces to confront the disturbing ties between terrorism and illegal narcotics. In addition to being a weapon in the arsenal of law enforcement, the buy and bust operation also tells an interesting story about motive in the criminal law. This article uses the simple street sale to demonstrate how the criminal law suffers from its ambivalent attitude towards the role that motive should play. Jurisdictions continue to struggle in deciding which participants in the simple street sale to condemn for what offenses and the appropriate relative punishments.

The questions of whom to punish and how much to punish are the very foundational issues that have long occupied punishment theorists. In order to achieve proportional justice, it is necessary to contemplate these questions. What is interesting about the context of the simple street sale is that asking these two questions leads to consideration of motive. Each participant has a different reason for their participation. But should motive determine their offense? Should motive determine their penalty?

Traditionalists answer no. Generations of scholars of the criminal law have learned that motive is irrelevant in the criminal law. It is especially irrelevant with respect to liability for a crime. Recently though, several criminal law scholars and legal philosophers have begun to debate the role of motive in the criminal law. Interestingly, both traditionalists and critics concede that contrary to the famous irrelevance maxim, motive has been relevant for a long time in some significant instances in the criminal law. Where they disagree is whether motive should assume an even greater role. Traditionalists and critics are engaged in defining the appropriate parameters for considerations of motive in the criminal law.

Jurisdictions have approached the challenge of criminalizing simple street sales in a variety of ways. Some have chosen to pay little attention to motive while others have done the opposite and over-accommodated it. This article focuses on the unique approach adopted by New York State known as the agency defense. This defense allows the defendant to be treated as nothing more than a purchasing agent for his principal, the ultimate buyer. In order to be treated as an agent, a jury must conclude that the defendant is motivated by a desire to help the undercover police officer. There must be no self-interest involved. Once this motive is established, status as an agent leads to an acquittal of the serious sale charges on two distinct grounds. First, an agent cannot be guilty of any charge different from his principal. Secondly, an agent is merely giving to the principal what his principal already owns. He is not selling anything to his principal. The result of either line of reasoning is that the defendant is not guilty of sale and is only guilty of a relatively minor offense of criminal possession of a controlled substance.

Part I of the article joins the evolving discussion of motive in the criminal law generally. To support the overall conclusion that motive should figure more prominently in the criminal law, part I proposes several novel ideas. First, although some other scholars are fixated with whether motive should be limited to determinations of either liability or punishment, this article proposes that decision makers should be free to consider motive when determining both. Second, part I explains that not all motives are the same. Indeed, motives such as self defense, insanity, and heat of passion clearly differ in terms of their provability and moral potency. While some may be more easily proven, others possess greater moral potency. Because of these critical differences, part I of this article proposes that motives which are easily proven and possess high moral potency be part of liability determinations while motives that present proof problems or low moral potency be restricted to sentencing. Third, part I ends with a sweeping recommendation to reform the overall attitude about motive in the criminal law. Far from being irrelevant to the criminal law and unworkable, motive should be thought of as essential. The criminal law should not limit itself to consideration of a few select motives; instead, it should welcome the challenge of incorporating defendants' various motives. With the freedom of multiple forums and the guidelines of provability and moral potency, an effective criminal law built around motive can be successfully developed. Part II then turns to the simple street sale and New York's agency defense and the intriguing lesson they offer for considerations of motive in the criminal law. Part II begins by analyzing the challenge of defining the offenses and punishments for various participants in the simple street sale and how the agency defense was designed to address this challenge. It continues with the history of how federal courts led state courts in the adoption of the judicially created agency defense and how Congress then eliminated it by statute in adopting the distribution approach to the war on drugs. In conclusion, part II describes instances of legal inconsistency produced by the agency defense in New York. As a contrast to the fiction of the agency defense, part III turns to the reality of the street drug trade. The article finally concludes in part III by taking two positions. First, the agency defense is nothing more than a poorly disguised ruse to suspend criminal liability for drug addicts who may steer and help other drug addicts in completing drug transactions on the streets. It should be abandoned in New York State. Second, a more honest and effective criminal law would allow for flexible and explicit consideration of more motives including drug addiction. Because drug addiction may feature problems of provability and low moral potency, it is best to replace the agency defense with mandatory consideration of addiction at sentencing for now. If Americans ever achieve moral consensus on the problem of crime motivated by drug addiction, then perhaps at that future point elimination or mitigation of criminal liability may be possible. The narcotic buy and bust operation has long been a central weapon in the arsenal of law enforcement agencies fighting the war on drugs. Despite its longstanding history, jurisdictions have yet to adopt satisfactory approaches to the conundrum of how to penalize each participant in the simple street sale. Efforts such as the agency defense in New York State have largely failed because of the great tension within the criminal law of how to accommodate the motives of those defendants with whom we empathize. The story of the simple street sale provides a valuable glimpse at how the criminal law needs to go further in addressing the current constraints on motive. Only by significantly shifting attitudes towards motive can we hope to build a more meaningful and effective criminal law.



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