The Challenge of Motive in the Criminal Law

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.