TOUGH CHOICE FOR CAPELESS

District Attorney David Capeless is a good guy with a series of tough
decisions to make. It is the role of the public prosecutor to enforce the
laws that are on the books. If there is a bad law, it really has to be
changed. I recently had a conversation with a retired jurist for whom I
have immense respect. He told me of an old adage, "The best way to change a
bad law is to enforce it." He also told me that in our system of
government, a lot often has to do with the color of the skin of those
accused of doing the crime. I think this premise is too basic to be
disputed. While it is not always true, the data suggests that in the
aggregate it is.

Capeless' current dilemma begins with the Taconic parking lot in central
Great Barrington. This lot was frequented by often bored and unhappy young
people, some of whom were quite rude and obnoxious to the point of cursing
and hassling those who passed. The DA's drug task force infiltrated the lot
and made arrests. Under the law, those convicted of selling drugs within
1,000 feet of a school face a mandatory jail sentence of two years. Because
of the current location of the town's schools, any drug deal that goes on
in downtown Great Barrington will invoke the law since every place in town
fits the criteria. This mandatory sentencing policy laid down by the
Legislature is a scaled-down version of the far more draconian Rockefeller
drug-law mandatory sentencing in nearby New York state.

Caught up in the Parking Lot 19 were some decent kids with middle-class
values and normal middle-class expectations about life. They, their parents
and friends see themselves as scapegoats for a system that allows all kinds
of people, from presidents on down, to smoke weed and other substances
without ever having to undergo the nightmare being faced by the Parking Lot
19. On the other side is a spate of letters from the public essentially
offering us the wisdom that "if you do the crime, you do the time." In the
minds of these writers, the kids knew what they were doing when they bought
and sold drugs, yet they still took the risk. It is incontrovertible that
since the Parking Lot 19 arrests went down, there has been a marked change
in the culture of the parking area.

That's where the district attorney's monumental problem comes in. He is
being heavily lobbied by petition, visiting deputations, parental
communications and meetings with some of Great Barrington's most
progressive and decent people, as well as by the desperate parents of the
kids who face jail and permanent, lifelong stains on their lives and
reputations.

Said my jurist friend, "If the kid's ... skin had been black, we would not
be having this debate right now. The kid would be in jail." Pretty good
chance he's right. On the other hand, you will remember "Miracle on 34th
Street," when the judge had to rule on whether Santa Claus was real and the
old ward heeler warned him that his re-election was on the line if he ru
led against Santa.

That is precisely the position Capeless finds himself in. If the kids are
allowed to cop a lesser charge with a punishment involving community
service and probation, he will be quite popular among the middle-class
Great Barrington folks who really feel for these kids.

On the other side are all those who want the laws enforced. The DA has to
be keenly aware that letting the kids off will have consequences. If you
give kids the message that any time they get into trouble and mom and dad
get involved, they'll be let off the hook, a certain downward spiral in the
administration of justice may occur.

I truly feel for the parents of the sometimes spoiled kids who were caught
up in this mess. In their place, I would be doing exactly what they are
doing, fighting like hell to keep my kids out of jail. The truth is that
even community service will leave a long-term stain on their reputations. I
believe that something less than prison time should be worked out.
Nevertheless, Capeless is in a bad spot. Some form of serious punishment
has to be administered. Right now, I would not want to be Capeless. One
false move and a promising career could be ruined. I wonder what he's going
to do. Alan Chartock, a Great Barrington resident, is president and CEO of
WAMC Northeast Public Radio.