Thoughts on the Proposed Crime of Criminal Sale to Children

When I first read the proposed reform of the Rockefeller Drug Laws, A.06085, I was glad to see that it contained a provision that would add Penal Law § 220.48, Criminal Sale of a Controlled Substance to a Child.  Based on the title of the crime, I thought it would fill in a glaring hole in Article 220.  When an adult sells drugs to a child, there are special and unique public policy interests that come into play, including the protection of children from predators.  Criminal Sale In or Near School Grounds (Penal Law § 220.44), while laudably aimed at protecting children, only applies to sales that occur on school grounds or within 1,000 feet of such facilities.

Despite the optimistic nature of its title, a close examination of the proposed legislation reveals that it will not serve much of a purpose.  A person would be guilty of this crime when:

being over twenty-one years old, he or she knowingly and unlawfully sells to a person less than sixteen years of age a controlled substance in violation of any one of subdivisions one through six-a or subdivision nine of section 220.34 of this article.

The controlled substances referenced include narcotic preparations (controlled substances in Schedules III(d) or III(e), such as nalorphine or codeine, the latter in excess of a certain amount), methadone, ketamine, and GHB (the so-called "date rape drug").  Glaringly omitted from this list are narcotic drugs under Schedule I or II, such as heroin and cocaine.

The bill summary touts this provision as "elevat[ing] penalties" for the sale of drugs to children.  It is one of the few provisions of Article 220 that would still carry mandatory prison time.  However, it is ultimately a fairly ineffective provision.  By exempting narcotic drugs and marijuana, it removes any real teeth from the crime.  Heroin, cocaine, and crack are the most prevalent and dangerous street drugs.  I predict that very few persons will be prosecuted under the new Penal Law § 220.48.  (LC)

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