Note on the Rockefeller Drug Laws and the Agency Defense


Excerpt from People v. Watson, 20 N.Y.3d 182 (2012): 

Legislative efforts to combat drug abuse in New York date back to the 1800s (see Thomas M. Quinn & Gerald T. McLaughlin, The Evolution & Present Status of New York Drug Control Legislation, 22 Buff L Rev 705, 709 [1972-1973]). Criminal liability for the sale and possession of cocaine was first imposed in the early twentieth century (see 711-712). During the next 50 years, the federal government and state legislatures increasingly relied on penal statutes to stem the tide of narcotics addiction (see id. at 713-732). By the early 1970s, a growing consensus recognized that earlier deterrence efforts were not effective and that new approaches were needed (see Interim Rep of Temp St Commn to Evaluate the Drug Laws, 1972 Legis Doc No. 10 at 7, 58). Proposals for change ran the gamut from legalization to more punitive criminal sanctions (see id. at 58).

The latter strategy was embraced by Governor Nelson Rockefeller, who believed that New York had unsuccessfully "tried every possible approach to stop addiction and save the addict through education and treatment" (Annual Message of the Governor, 1973 McKinney's Session Laws of NY at 2318, quoted in People v Davis, 33 NY2d 221, 228 [1973], cert denied 416 US 973 [1974]). At the same time, the legislature was grappling with what it "found to be a high recidivism rate in drug-related crimes, an inadequate response to less severe punishment, and an insidiously growing drug abuse problem" (People v Broadie, 37 NY2d 100, 114 [1975], cert denied 423 US 950 [1975]). It accepted the Governor's plan and a series of bills were passed that came to be known as the "Rockefeller Drug Laws" (see L 1973, chs 276, 277, 278, 676, 1051).

The centerpiece of the new laws was a "radical restructuring of not only drug laws but of sentencing statutes as well" (Albert M. Rosenblatt, New York's New Drug Laws & Sentencing Statutes at v [Law Journal Press 1973]). In adopting harsher consequences for the sale and possession of illegal drugs, New 185*185 York's statutory penalties became the most stringent in the nation and narcotics crimes were punished "more severely and inflexibly than almost any other offense in the State" — elevating many of them to the status shared by second-degree murder, first-degree kidnapping and first-degree arson (People v Broadie, 37 NY2d at 115). Specifically, mandatory indeterminate life sentences were imposed "in all narcotic drug sales or transfers, however small, and for possession of over one eighth of an ounce" (Albert M. Rosenblatt, New York's New Drug Laws & Sentencing Statutes at v). Although the statutory minimums ranged from one year to 25 years (depending on the quantity of drug sold or possessed), the concept of an indeterminate life sentence meant that defendants who were released on parole were subject to supervision for the remainder of their lives.

In addition to the increased penalties, the pre-existing Penal Law definition of the term "sell" resulted in certain persons, who would not ordinarily be considered drug dealers, being swept within the life-imprisonment provisions of the Rockefeller Drug Laws (see generally Arnold D. Hechtman, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 220.00 at 13 [1980]). This occurred because the term "sell" was defined as covering not only a traditional sale or exchange for consideration, but also to "give or dispose of to another, or to offer or agree to do the same" (Penal Law § 220.00 [1]; cf. Penal Law of 1909 § 1751). Consequently, "any form of transfer of a controlled substance from one person to another" — no matter how minuscule the amount and regardless of whether there was a profit — was treated as a drug sale that could land the offender in prison for life (William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 220.00 at 22). In theory, this broad definition of "sell" included anyone who, upon request, offered to procure a small quantity of narcotics for another individual as a favor or without an expectation of personal benefit.

Defendants who became ensnared in this definitional net and faced charges of criminal sale of a controlled substance borrowed an "agency defense" theory that had been successfully used in criminal prosecutions during Prohibition (see e.g. State v Lynch, 81 Ohio St 336, 90 NE 935 [1910]). The "agency" doctrine was premised on the concept that a "person who acts solely as the agent of a buyer in procuring drugs for the buyer is not guilty of selling the drug to the buyer, or of possessing it with intent to sell it to the buyer" (William C. Donnino, Practice 186*186 Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 220.00 at 33).

This Court endorsed the agency defense in the context of a drug sale in People v Lam Lek Chong (45 NY2d 64 [1978], cert denied 439 US 935 [1978]). We observed that the sale of controlled substances was treated more harshly than possession and that there "are certain cases where the defendant's mere delivery of the drugs does not appear to involve the same degree of culpability, or warrant the extreme penalties, associated with pushing drugs" (id. at 72). We further reasoned that when the legislature drafted the definition of "sell," it was presumably aware of the earlier decisional law that recognized agency as a defense to the sale of illegal substances; yet, the legislature did not evince an intent to require the courts to abandon application of the defense (see id. at 73-74). We therefore held that the agency defense could be asserted in a drug sale case, which required the finder of fact to determine the extent of an intermediary's criminal liability, either as a seller or a purchaser for another (see id. at 74). To reach that conclusion, we indicated that the jury should consider

"the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction" (id. at 75).

In three cases decided on the same day as Lam Lek Chong, we further explained that an agency defense (1) must be charged to the jury if any reasonable view of the evidence supports it (see People v Roche, 45 NY2d 78, 86 [1978], cert denied 439 US 958 [1978]); (2) cannot be used by a person who acts "at the very least as a middleman or a broker for his supplier" (People v Argibay, 45 NY2d 45, 50 [1978], cert denied sub nom. Hahn-Diguiseppe v New York, 439 US 930 [1978]); and (3) does not apply to a drug possession charge (see People v Sierra, 45 NY2d 56, 58 [1978]). The harshness of the sentences that were imposed under the Rockefeller Drug Laws have been mitigated (see e.g. People v Acevedo, 14 NY3d 828, 831 [2010]People v Utsey, 7 NY3d 398, 401 [2006] [both discussing the Drug Law Reform Act of 2004 (L 2004, ch 738)]), but the agency defense nevertheless continues to provide a means of determining the extent of the intermediary's culpability as either a buyer or 187*187 seller of narcotics (see generally People v Davis, 14 NY3d 20, 24 [2009])


2008 Testimony of Robert A. Perry, on behalf of The New York Civil Liberties Union, before the New York State Assembly Committees on Codes, Judiciary, Correction, Health, Alcoholism and Drug Abuse, and Social Services regarding The Rockefeller Drug Laws. 

The racial disparity in New York's prison population has increased dramatically since the mid-1980s and the advent of the “war on drugs.”  There were 886 persons incarcerated for drug offenses in 1980. Of these individuals, 32 percent were Caucasian; 38 percent were African American; and 29 percent were Latino. In 1992, the year in which the state reported the highest number of commitments for drug offenses, 5 percent of those incarcerated were Caucasian; 50 percent were African American; and 44 percent were Latino. The demographics of the inmate population serving time for drug offenses in 2000 had changed little from the data reported in 1992. (See table below.) Of the 8,227 new commitments for drug offenses in 2000, 6 percent were Caucasian; 53 percent were African American; and 40 percent were Latino. The disparities persist. Today more than 90 percent of persons incarcerated for drug offenses are African American or Latino.

The racial and ethnic disparities among the population incarcerated for drug offenses in New York State do not reflect higher rates of offending among African Americans and Latinos. In a relatively recent government study, a total of 1.8 million adults in New York (about 13 percent of the total adult population) reported using illegal drugs in the preceding year. Of those reported users of illicit drugs, 1.3 million – or 72 percent -- were white. Moreover, research indicates that whites are the principal purveyors of drugs in the state. When the National Institute of Justice surveyed a sample of more than 2,000 recently arrested drug users from several large cities, including Manhattan, the researchers learned that “respondents were most likely to report using a main source who was of their own racial or ethnic background regardless of the drug considered.” Upon closer analysis these findings reveal that there are, indeed, many more drug sales in white communities than there are in communities of color, but the transactions that occur in white communities tend to escape detection because they take place behind closed doors in homes and offices. Criminologist Alfred Blumstein, the nation's leading expert on racial disparities in criminal sentencing practices, has concluded that with respect to drug offenses, the much higher arrest and conviction rates for blacks are not related to higher levels of criminal offending, but can only be explained by other factors, including racial bias.

The total cost of incarcerating New York City residents sent to prison in 2006 for drug offenses will be $1.1 billion. (This reflects the cost of imprisonment for the minimum term to which each person has been sentenced.) This expenditure represents more than 40 percent of the cost of incarcerating all city residents sent to prison that year.