DRUG BUST LEADS TO DOUBTS ON SENTENCING

Arrests split town in the Berkshires

GREAT BARRINGTON -- Kyle Sawin was seen as a good kid in this sleepy
resort town of 7,500, an honors student at the local high school who
helped out at his parents' seafood business.

But when Sawin was arrested with 16 others on charges of selling
drugs near a school, none of that mattered to local prosecutors, who
pushed for mandatory two-year sentences for all of them. The decision
to prosecute as seasoned drug dealers Sawin and six other alleged
first-time offenders has divided Great Barrington, and thrust the
scenic Berkshires town into the center of nationwide debate over
whether the punishment for those who break the law should depend on
the kind of lives they lead. ''These aren't thugs, they're not tough,
and they're being thrown in with hardened criminals," said Peter
Greer, 50, a former Wall Street executive.

Greer is one of a vocal group of residents who say young people caught
selling small amounts of marijuana, but who have never been in
trouble before, should be punished less severely than those peddling
more dangerous drugs like cocaine and heroin.

Berkshire District Attorney David F. Capeless disagrees, along with
others interviewed for this story who believe in tough punishment for
anyone who sells drugs.

Capeless said he would not treat first-time drug dealers in Great
Barrington differently than similar offenders in communities where
drug arrests are more frequent, such as the city of Pittsfield, a
poorer community 20 miles to the north.

''These people didn't complain when we were doing it up in
Pittsfield," said Capeless. ''Where have they been for the last 15
years?" Best known as a hot spot for summer theater and the birthplace
of W.E.B. Dubois, Great Barrington is small enough, residents say,
that many in town recognized the names and faces of some of the
accused drug dealers. ''My first thought was, 'Great . . . they're
cleaning it up,' " said Steven Picheny, 64, a local businessman who
helped form Concerned Citizens for Appropriate Justice, a group that
supports more lenient punishment for the seven first-time offenders
charged with selling marijuana. ''Then I talked to one of the parents,
who was so distraught, and I started to think, something's not adding
up. It could have been my kids, and I'm outraged that two years could
be the sentence."

The other 10 people arrested were charged with selling cocaine,
ecstasy, or ketamine, an anesthetic used by young clubgoers.

Picheny and other locals who have protested the proposed sentences for
the seven first-time offenders charged with selling marijuana say they
did not know most of the affected families well. They say their
support for Sawin and the other first-time offenders was motivated by
principle rather than social connections; Greer said he would gladly
support a similar project in Pittsfield, though he qualified that by
adding that any such effort should begin with local citizens.

The drama began unfolding last summer, when local police asked the
county drug task force to help respond to disturbances in a parking
lot outside the Triplex Cinema. Groups of teenagers were hanging out
at all hours and scattered fights would break out, frightening residents.

An undercover detective began spending time there, getting to know the
crowd of young regulars.

Over several months, police and prosecutors say, he bought drugs from
many of them.

The small parking lot, surrounded by upscale shops and galleries in
the heart of Great Barrington's picturesque downtown, lies just steps
from the sidewalks of Main Street, and also within 1,000 feet of a
school.

That led to an additional charge against anyone caught selling drugs
in or near the parking lot: selling drugs in a ''school zone," which
carries a mandatory minimum sentence of two years in jail under state
law.

Common across the country, mandatory minimum sentences have been
lauded for boosting consistency but blamed for filling prisons with
nonviolent offenders. In Massachusetts, the laws are inconsistently
applied, said Michael Traft, a Boston lawyer and member of the
Massachusetts Sentencing Commission. Some prosecutors press the school
zone charge routinely, while others commonly drop it in order to reach
plea agreement, Traft said. The commission has repeatedly proposed
legislation that would allow judges the discretion to weigh the
defendants' individual circumstances and lighten a mandatory
sentence. Capeless, a Democrat elected two years ago, said his office
always invokes the school zone law when it applies, and that this
policy has helped the county build a reputation for toughness that
keeps some drug dealers from doing business there.

The group of citizens, led by Greer and Picheny and involving about a
dozen others, including the mother of one of the accused teenagers,
has become increasingly vocal in advancing the argument that
first-time offenders caught selling marijuana should receive lighter
punishment. The group meets weekly, and has spent about $5,000 on
newspaper advertisements and a billboard near downtown Pittsfield
attacking the district attorney for his ''extreme" approach. Residents
on both sides of the issue say they believe the news media campaign
was influential in Sawin's acquittal last month, in the first trial of
the seven first-time offenders.

Sawin was found not guilty even though he acknowledged selling
marijuana to the undercover officer. Sawin's lawyer, Judy Knight,
argued in court that he was pressured by the officer to sell the drug.

In an interview, she said her client has stopped using drugs, has
graduated from high school, and is now working as an assistant
manager at a grocery store. ''This has been hell for him," she said.

Defenders of Sawin and the six others argue that first-time offenders
charged with selling marijuana would be more likely to learn their
lesson if they were put on probation, sent to drug counseling, and
ordered to do community service. ''To ruin someone's life for an
offense that's so common, and in my mind harmless, is absurd," said
Matthew Rubiner, 40, whose gourmet cheese shop is located near the
small, busy parking lot where the drug cases began. ''I know some of
these kids, and I reckon I could draw a clear line between the good
kids who went a little astray and the really troubled kids," he said.
Like other business owners, Rubiner expressed satisfaction over the
calmer, cleaner atmosphere since the arrests; he said the improvement
to the area is ''palpable" and vital to his plans to expand his shop,
housed in a gracious old bank building with high ceilings, to include
a patio cafe by the parking lot. Even so, he believes those who sold
cocaine and ketamine should ''get what they get," while those who sold
marijuana should get something less. Another business owner who
declined to give his name said all drugs are dangerous, and all
dealers should be prosecuted ''to the fullest extent.

What if they sell drugs to someone who runs over my grandchild?"
Several other people who support the district attorney also declined
to give their names to a reporter, citing fears of criticism if their
views were known. But John Beckwith, 68, a retired Great Barrington
police officer and former selectman, said the citizens' campaign and
Sawin's subsequent acquittal had sent a dangerous message to young
people, suggesting that they can ''do anything and get away with it."