RETHINKING DRUG-FREE SCHOOL ZONES

Gov. Patrick Proposes Changing a Policy Critics Say Is Unfair and Ineffective.

The only thing new about Gov. Deval Patrick's recent proposal to
shrink so-called "drug-free" school zones in Massachusetts is his support.

For years, advocates of criminal justice reform have been critical of
the school zone law, which carries mandatory minimum sentences for
drug crimes that take place within 1,000 feet of school property.
While the law was passed in the name of public safety and the
protection of children, critics say it's so broadly drawn that it's
ineffective, and that it unfairly penalizes certain defendants on the
basis of where they live.

At least some lawmakers have been sympathetic to those arguments,
including members of the Legislature's joint Judiciary Committee,
which in 2008 approved a bill that would have addressed some of the
criticisms. That bill did not make it out of the 2007-2008 legislative session.

Now reformers have found an ally in the Statehouse's corner office.
Last month, Patrick announced a proposal to dramatically reduce the
size of the school zones, from 1,000 to 100 feet, as part of a plan
to address a staggering projected state budget gap of $1.2 billion.
The plan also includes proposals to close two state prisons and to
ease sentencing laws for non-violent drug offenders, all moves the
governor contends would save much-needed money.

Patrick's school zone proposal has been met with resistance from
expected sources within law enforcement circles. Still, proponents
hope that this time, lawmakers will see the proposal as a wise move
both from a public safety and an economic standpoint.

Peter Wagner, an attorney and executive director of Easthampton's
Prison Policy Initiative, calls the governor's plan " a very
exciting, common sense response to an experiment & that we now we
know doesn't work, can't ever work, and actually does harm."

Massachusetts' drug-free school zone law began with another governor,
Mike Dukakis. In 1989, Dukakis, fresh off an unsuccessful
presidential campaign, announced a plan to impose mandatory minimum
sentences of two to 15 years for anyone convicted of selling or
distributing drugs within 1,000 feet of schools. The sentencing
guidelines would apply regardless of the amount or kind of drugs
involved, regardless of whether the person convicted had any previous
criminal record, and regardless of whether children were present or
school was in session at the time of the crime. The school-zone
minimums would be applied in addition to any sentences given for the
underlying drug offense itself, and could not be served concurrently
with them. The bill was passed by the Legislature that summer.

Proponents of the bill described it as a way to protect vulnerable
school kids from exposure to illegal drugs and the violence that
often attends its trade. But a 2009 report by the Prison Policy
Initiative cast serious doubts on the law's effectiveness, and
pointed to its likely unintentional but nonetheless significant
discriminatory effect.

In the report, "The Geography of Punishment," Wagner and co-authors
Aleks Kajstura and William Goldberg found that school-zone laws
subject urban residents to harsher penalties than residents of rural
and suburban areas. That's because urban cores are densely populated,
with more residents living within 1,000 feet of an institution
protected under the law. (In addition to public and private schools,
the drug-free zone law also applies to day care centers and Head
Start programs. In 1993, the Legislature also passed a law creating
100-foot drug-free zones around parks and playgrounds.)

In cities like Springfield and Holyoke, the report found, the large
number of schools create multiple overlapping 1,000-foot zones,
rendering entire downtown or urban core neighborhoods one giant
"school zone." In Hampden County, the PPI researchers found,
residents of urban communities were five times more likely to live in
a school zone than residents of rural communities-a situation that
has race-based consequences as well.

"Because Blacks and Latinos are more likely to live in urban areas, a
law that enhances the sentences of urban residents does more harm to
Black and Latino populations than to whites," the report noted. "This
racial disparity in the populations covered by sentencing enhancement
zones is a large part of why almost 8 out of 10 people convicted of
zone offenses in Massachusetts are Black or Latino."

That, in turn, leads to incarceration rates that are disproportionate
to the state's demographics. While African-Americans and Latinos
comprise 12 percent of the state's population, they make up 58
percent of its prison population.

And, the report noted, those mandatory minimum sentences come with a
significant cost: the state spends more than $31 million each year to
incarcerate prisoners sentenced under the school zone law, researchers found.

Yet for all that cost, critics say, drug-free school zones laws just
aren't effective at deterring crime, because they're written too broadly.

The law was crafted to offer children special protection from drug
activity by making it clear to dealers that they will face extra
penalties for plying their trade near schools. But a 1,000-foot zone
is so large-it extends from all borders of the school property, be it
the front sidewalk or a faraway back field-that most people don't
even know what the zone covers, or that it even exists at all, the
PPI report notes.

In addition, the zones can ensnare drug activities that are in no way
visible or connected to school kids-say, a deal that happens inside a
private home after school hours.

And because the zones are measured "as the crow flies," a person
could be within 1,000 feet of a school property they can't even see;
in one striking illustration from the report, a person arrested for a
drug crime on Bonner Street in Chicopee could be charged under the
mandatory minimum law because he or she was within 1,000 feet of
Holyoke's Dean Technical High School-despite the fact that the
Connecticut River flows between the two points, with the nearest
bridge a couple of miles away.

"When these laws were first put together, [legislators] made the
assumption that anyone doing a drug offense within 1,000 feet of a
school must be intending to include children in that offense," Wagner
said. In reality, though, it's quite likely that the offenders might
not even be aware that they're within a school zone-and that, Wagner
says, robs the law of its intended purpose, to provide special
protection to children.

"When the zones are so very large, they become meaningless," said
Barbara Dougan, director of the Massachusetts chapter of Families
Against Mandatory Minimums, or FAMM, a nonprofit that advocates for
sentencing reforms. "Nobody really understands whether they really
are or are not within a zone, so [the laws] lose their deterrent
value, they lose the very reason they were enacted.

"The one thing it does not do is deter drug transactions based on the
knowledge that you're within a school zone," Dougan continued. "What
it does do is impose harsher penalties on people because of where
they live, not what they do."

Patrick's proposal directly addresses the charge that the current
school zones are too large by reducing the 1,000 "protected zone" to
100 feet. (The governor's plan does not reach as far as the bill
supported by the Judiciary Committee in 2008, which also removed the
mandatory minimum sentence for first-time offenders.)

Gregory Massing, general counsel for the Executive Office of Public
Safety and Security, recently told the Boston Globe that the existing
school zone law "is an overbroad law that doesn't do what it's
supposed to do. Ultimately it fails to protect children and meanwhile
incarcerates a lot of people for a lot of time at the government's expense.'

As supporters of reform make the case for Patrick's proposal, noted
FAMM's Dougan, it's important to emphasize what the governor's plan
wouldn't do. It wouldn't remove the mandatory minimum requirement; it
would just limit it to crimes committed within tighter school zones.
It wouldn't change existing laws that already impose strong penalties
for drug crimes that involve guns or children. By law, a conviction
for selling drugs to minors carries a mandatory minimum sentence of
two to five years; employing minors in drug transactions carries a
five-year minimum sentence.

"We already have laws on the books that have zeroed in on the whole
notion, justifiably, of protecting kids from drug offense," Dougan
said. "[Patrick] has drawn a bright line around drug offenses using
violence or [involving] children. Those [penalties] do not change at all."

The governor's proposal, she added, would make school zones
consistent with the 100-foot drug-free zones that already exist
around playgrounds and parks. "Nobody has ever suggested that's not
an effective-sized zone for parks and playgrounds," she said.

But a number of people are suggesting that shrinking the school zones
would put kids at risk, and rob prosecutors of an important weapon in
the war on drugs. They include some police department leaders as well
as Attorney General Martha Coakley. In a statement released in
response to Patrick's plan, Coakley said, "I do not believe that we
should reduce this tool that prosecutors and police have to combat
drug dealers. The school zones allow us to more effectively hold
defendants accountable and serve as a deterrent for those engaged in
drug dealing.'

Mark Leahy, president of the Massachusetts Chiefs of Police
Association and Northborough's police chief, recently told the Boston
Globe that a 100-foot drug-free school zone would do little to buffer
kids from dealers. "The fact that [drug deals] could occur within 100
feet, within eye-shot and earshot of a school, bothers me a lot,'
Leahy said. "The only possible benefit is that if the kids are
playing kickball on the field and kick the ball over the fence,
perhaps the drug dealers can return it to them.'

The strongest opposition to the governor's proposal is likely to come
from Massachusetts' district attorneys-the ones, after all, who make
decisions about which laws to use to prosecute defendants.
School-zone convictions represent a relatively minor portion of the
state's total drug convictions. According to the Massachusetts
Sentencing Commission, in 2009, 294 people were sentenced after being
convicted under school zone laws-about one-quarter of all convictions
under mandatory minimum drug laws, and 3.6 percent of total drug
convictions that year.

The school zone penalties do, however, serve a powerful purpose for
prosecutors, providing them with leverage to get guilty pleas from
defendants. Faced with a potential mandatory minimum sentence for a
school zone violation on top of the penalties for the underlying drug
offense, many defendants will opt to plead guilty to that underlying
offense rather than risk the two- to 15-year sentence that comes with
the school-based offense, PPI's Wagner noted.

"This is where the prosecutors really like this," he said. "You can
give [defendants] an incentive to plead guilty, so they plead guilty
to get a lower sentence, and they waive their right to a trial. &

"That's not the prosecutors' fault, but the reality is, if you give
them an overbroad law, they will enforce it," Wagner continued. And
that, in turn, "keeps the state from putting its resources into a
better criminal justice process," or drug treatment and education programs.

What do the Valley's two newly sworn-in district attorneys think of
Patrick's proposal? Northwestern District Attorney David Sullivan
voices limited support. "I am fully in favor of drug-free school
zones. I favor a reduction from 1,000 feet to an appropriate
distance. The drug-free zone should be greater than 100 feet, and,
hopefully, the Legislature can establish a reasonable distance to
safeguard children," Sullivan said in a statement in response to an
inquiry from the Advocate.

At deadline, the Advocate was unable to reach Mark Mastroianni, the
new district attorney for Hampden County-where, the 2009 PPI report
found, prosecutors brought school zone charges more often than
prosecutors in any other district attorney's office.

But in an interview with the Advocate last fall, before his election,
Mastroianni spoke of the court backlog created by an overzealous
prosecution of every charge that carries a mandatory minimum.

The then-candidate said he did not support abolishing school zone
laws or others that carry mandatory minimum sentences. But, he said,
"I think the district attorney's office needs to exercise a lot
better discretion in who they apply them to. Because, let's be
honest: some people are getting school zone charges because they're
selling drugs in an apartment building that just happens to be down
the street from a school, and they're doing it at two in the morning,
and it has nothing to do with the school.

"But let me tell you, there are people who wait on a corner and do
want to sell to kids on their way to school, and that's the kind of
person [about whom] I'm saying, I'm so glad I have this school-zone
statute, and I'm so glad to have mandatory minimums."

Given the powerful opposition it will face, do reform advocates think
Patrick's plan has a shot at becoming law?

"I'm not a lobbyist, so it's a little bit outside my expertise,"
Wagner said. "But I think the governor's proposing this at the right
time, when people are a little fed up with criminal justice policies
that don't work, and are also looking to save money in the government.

"We absolutely want to protect children from drugs," Wagner added.
"And we want to do so in the most effective way possible, and we
don't want to do it by expensive laws that incarcerate the wrong people."