ZONE DEFENSE

Drug-Free School Zones Were Supposed To Keep Dealers Away From Kids. But
What Happens When The Zones Engulf Whole Cities?

In the spring of 1997, Dematric Young was living at the Sunset Motel just
off Highway 84 in North Lubbock, Texas. The Sunset is run-down place in a
mainly Hispanic neighborhood and home to a constantly shifting roster of
semi-permanent guests--low income, down-on-their-luck types, often a step
away from the homeless shelter.

From his room there, on two occasions, Young sold an undercover narcotics
agent somewhere between two and four grams--around $400 worth--of cocaine.

The normal sentence in the state of Texas for such a crime would have been
around ten years.

But Young discovered that he would be facing a much harsher sentence,
because, unbeknown to him, his motel room was located in a "drug-free
school zone."

According to Texas state law, everywhere within 1,000 feet of a school
constitutes a "drug-free zone." Anyone convicted of selling or possessing
drugs within such a zone is subject to an enhanced sentence--a five-year
mandatory minimum over and above the sentence imposed for the original
offense. Unfortunately for Young, the Sunset was within 1,000 feet of
Cavazos Junior High School. He was never accused of selling drugs to
children. Nor did he ever set foot inside the Cavazos schoolyard. But under
the Texas drug-free school zone law, neither of these facts is relevant.

Texas law also requires that Young be tried separately for each charge,
once for possession of cocaine and additionally for sales of cocaine within
a drug-free school zone. And it requires that any sentences be served
consecutively rather than concurrently. As a result, Young--20 at the time
of his arrest--is now serving a 38-year sentence, ineligible for parole
until at least 2021. "His life is over," says his lawyer, Bob Huddleston.

There's little reason to expect that the Texas politicians who created the
state's drug-free zone laws would have much sympathy for Young, given that
the crime he was convicted of corresponds perfectly with the law they
wrote. But even the most tough-on-crime legislators might question whether
the intention of a law designed to keep drug dealers away from school
children is being well served by the imposition of a massive extra penalty
on someone who was not selling to kids, who was nowhere near them, and who
was essentially operating out of his home.

All together, drug-free zone laws rank among the country's most specious
criminal drug statutes.

Over the years, states have created so many of these zones, of such immense
scope, that they now encompass almost the entirety of some cities,
rendering them overwhelmingly ineffective. Yet, drug-free zoning has hardly
been inconsequential. It has helped send countless low-level drug offenders
in inner cities--most of them minorities like Young, who's black--to prison
for much longer terms than those committing the same crimes in the suburbs,
where drug-free zones occupy a dramatically smaller fraction of the overall
space.

At a time when Americans are increasingly questioning the fairness of drug
laws that disproportionately affect minorities--as with the vastly higher
penalties associated with crack versus powdered cocaine--the drug-free zone
regime, though it has the same effect, is not even on the nation's radar
screen.

Marking Territory

Drug-free zone criminal statutes originated in the mid-1980s as the crack
epidemic hit the country's inner cities.

The Comprehensive Crime Control Act of 1984 imposed enhanced federal
penalties on those convicted of selling drugs near schools and other places
occupied by kids. The law was, as it remains, remarkably broad--doubling
the maximum punishment for possession or distribution of a controlled
substance within 1,000 feet of "a public or private elementary, vocational,
or secondary school or a public or private college, junior college, or
university, or a playground, or a housing facility owned by a public
housing authority, or within 100 feet of a public or private youth center,
public swimming pool, or video arcade." It exempts only those offenses
involving five grams or less of marijuana.

With the renewed public alarm that followed the 1986 death of the
University of Maryland basketball star Len Bias from a cocaine overdose,
states began creating their own drug-free zones, modeled on the federal
statute. The rhetoric justifying these zones made for considerable
political capital.

Running for re-election in 1986, Massachusetts Gov. Michael Dukakis urged
passage of the Massachusetts "school zone" law so that the state could
"make schools drug-free by 1990." D.C. Mayor Marion Barry even created
drug-free zones in Washington a few months before being arrested for
smoking crack.

More than 15 years after Congress passed the initial federal act,
supporters of drug-free zone laws can point to countless low-level drug
dealers like Dematric Young now behind bars. But they would be hard-pressed
to demonstrate that the laws have actually lived up to their most basic
aim: reducing illicit drug use among school kids.

If the laws had been successful, drug use by school-age kids should have
fallen following their implementation. Instead, while use among high-school
students did decrease for virtually every type of illicit drug over the
course of the '80s--reaching a low around 1992--this decrease had already
started by the time the zone laws took effect.

Since 1992, levels of drug use have slightly increased.

"Drug-free zones sound tough-minded and reassuring," says Naomi Murakawa,
co-director of A Better Way Foundation, a Connecticut-based drug-policy
research group. "But they're really neither, because what they're trying to
deal with is a highly mobile black-market commodity, and it's just not
possible to create a public zone that's genuinely free of something like
that. Even if drug-free zone laws haven't reduced adolescent drug use or
created zones that are actually drug-free, they should have at least pushed
drug sales away from schools, right?

But a recent study conducted through Boston University's School of Public
Health by Will Brownsberger, a lecturer at B.U. and Harvard, found no
evidence that that's the case.

Having mapped out an extensive sample-set of "school-zone" dealing arrests
in Massachusetts, Brownsberger found that drug dealing is actually denser
inside the zones than it is outside.

What's more, within the 1,000-foot radius of the zones, there is no
decrease in the density of arrests as you move toward points on the maps
closer to schools--that is, drug-free school zones don't seem to deter drug
dealers.

In high-poverty areas of Springfield during fiscal 1999, for example,
Brownsberger's study shows that areas within 250 feet of schools had a
density of 44 dealing arrests per square mile, while the density in areas
750 to 1,000 feet distant was only 31. The data aren't conclusive, of
course, given that no one tracked the arrests before drug-free zones
existed, but they're hardly reassuring.

Logic-Free Zone

The Brownsberger study illustrates how the design of "drug-free zones" is
systematically at odds with its intent.

For one thing, it's often difficult for anyone to know that he or she is in
a drug-free zone. What signs there are only indicate the zones without
demarcating them. So someone can easily be 1,000 feet from the nearest
drug-free zone indicator and yet be inside the zone.

"It's a great departure from reality to ascribe that level of knowledge to
the vast majority of defendants facing 'school zone' charges," says James
Fagan, a Democratic member of the Massachusetts House of Representatives
and a former assistant district attorney, who has worked as a criminal
defense lawyer since 1977. "The average client who gets caught in these
zones is an unsophisticated, low-level guy."

It's confusing enough to figure out where the zones begin and where they
end when they're sparsely located, as they tend to be in suburban
neighborhoods. But in inner cities, where most drug-free zones are found,
the zones tend to intersect with one another, creating oddly-shaped,
overlapping entities, immensely confusing to people on the street.

And often, inner-city drug-free zones aren't only irregular; they're huge.
No matter where they're located, each is a big circle, 2,000 to 3,000 feet
across--the length of six to 10 football fields.

And that's where state laws follow the standard 1,000 to 1,500 foot
definition. In Missouri, the radius is 2,000 feet; in Kentucky, 1,000
yards; in South Carolina, half a mile; and in Alabama, a stunning three miles.

In urban neighborhoods, the sheer number and concentration of public
schools and other designated places create dense and extensive sets of
overlapping territories that effectively block off entire swaths of city
centers as massive drug-free "school" zones.

As Fagan notes, "In the city of Boston, it's virtually impossible not to be
within 1,000 feet of a school."

While a slight exaggeration, Fagan's claim is not far off the mark--not
only for Boston but for most American cities.

In the high-poverty urban areas studied for Brownsberger's report, for
example, a full 56 percent of the overall area was within the boundaries of
a drug-free zone. A Congressional Research Service study of such areas in
the District of Columbia, requested by Massachusetts Sen. Edward Kennedy in
1995, estimated that at least 60 percent of the city fell into a drug-free
zone. In New Haven, Conn., the only extensive space that's not part of one
is the Yale golf course.

In urban areas, drug-free zones often take up more space than they leave.

What this means is that the default assumption for urban drug dealers is
that they are, at any given time, probably in a drug-free zone. It doesn't
take a game theorist to realize that the more this assumption gets made,
the less effective the laws will be. Besides the laws simply fail to
account for the way in which drug dealers actually behave.

As a general rule, low-level dealers conduct business close to where they
live. And, as Brownsberger's study demonstrates, most people charged on
drug-free zone violations end up being simply those who live within them.
Neither are most of those people actually selling to kids. Eighty percent
of the cases Brownsberger studied occurred within a drug-free zone, but
less than one percent involved sales to minors.

Advocates nevertheless defend zone-based sentencing laws as providing
important "tools" for law enforcement. Bridget Brennan, New York City's
special narcotics prosecutor, tellingly admits that she doesn't know the
intent of drug-free zone laws. Brennan assumes, upon reflection, that
they're meant to dissuade dealers, but says frankly that they have no such
effect. What they do--and this is what she likes about them--is give
prosecutors the option to go for a stiffer penalty "if appropriate."

But the "appropriateness" which Brennan invokes is strictly a prosecutor's
criterion. And, as it turns out, most zone-based charges actually end up
being broken down, which means that they're used to get the defendant to
plead to lesser charges so as to avoid the mandatory minimum.

What's more, Brownsberger found that the decisions prosecutors make on
whether to break charges down aren't influenced at all by the proximity of
an arrest to a school, nor by whether or not classes were actually in and
kids were around. Fagan notes a similar disjuncture in the way drug-free
zones give discretion to arresting officers: "I've had cases where the
police have literally followed a car for miles in order to stop the guy in
a school zone, even though it was two in the morning."

Neighborhood Profiling

A case could be made that, in the end, it doesn't matter what the intent of
zone-based sentencing laws is, as long as they help put drug dealers away.
But the use of drug-free zone laws as case-management tools by prosecutors
and police has at least one systematic and very troubling side effect: It
creates a stark bias against inner cities and their largely poor, largely
minority, residents.

The virtual omnipresence of urban drug-free zones mean that defendants
living in densely populated areas are much more likely to face zone-based
charges--and much more likely to be sentenced, and to be sentenced for
longer--for the same crimes committed by relatively wealthy,
disproportionately white, suburbanites. In Connecticut, for instance,
cities whose populations are one-third black or Hispanic have 5.25
drug-free zones per square mile. Towns where minorities make up less than
10 percent of the population have only .48 zones per square mile, according
to a recent study by A Better Way Foundation's Sarah Bray. In other words,
these laws overly target poor African-Americans and Hispanics, not on the
basis of involvement in the drug trade per se, but purely on the basis of
where they live. There is also, unfortunately, evidence of conspicuous
racial inconsistencies in decisions on whether or not to charge defendants
with drug-free zone violations--particularly on whether or not to charge
them with "intent to distribute" within a zone, which is typically
determined by the quantity of the drug in a suspect's possession. In 1998,
Deborah Ramirez of the Northeastern University Law School and Jack
McDevitt, co-director of Northeastern's Center for Criminal Justice Policy
Research, conducted a study to determine whether non-whites (for their
purposes, blacks and Hispanics) were more or less likely to face "school
zone" charges than whites.

Among their results: 41 percent of non-whites in possession of less than
one-eighth of a gram of cocaine were charged with intent, compared to only
11 percent of whites in possession of the same amount. For amounts over a
gram and a half, 94 percent of non-whites were charged but only 26 percent
of whites.

Few things poison race relations in America today more than the
differential sentencing of white and black or Hispanic people who commit
essentially the same crimes.

As Judge Robert Mulligan of the Norfolk, Mass., Superior Court observes,
the main social effect of these zones is to breed "tremendous cynicism
toward the law, particularly among those groups disproportionately affected
by it."

Legal Crack-Up

For years now, defense attorneys have been contesting drug-free-zone
sentencing laws in state courts, without much success.

Legal challenges to the federal statute have also failed, even in light of
the Supreme Court's 1995 decision in U.S. v. Lopez, which struck down the
federal Gun-Free School Zone Act. In framing that law, which criminalized
gun possession within 1,000 feet of a school, Congress had invoked the
power of the Constitution's commerce clause.

But the high court ruled the act unconstitutional on the grounds that gun
possession does not "substantially affect interstate commerce" and is
therefore not something Congress has the constitutional authority to regulate.

Federal appellate courts have since gone to great, and occasionally
acrobatic, lengths to explain why gun possession doesn't affect interstate
commerce whereas drug possession does. But despite the tension between the
rulings, the federal law has been permitted to stand.

Which means that fixing what's wrong with zone-based sentencing laws will
be up to elected officials, particularly at the state level, where most
drug-free zone cases are prosecuted. While many politicians will admit that
the legislation is deeply flawed, few are eager to challenge it for fear of
appearing soft on crime.

Some of their constituents, furthermore, are proponents of the laws, and
genuinely believe that, despite everything that's wrong with drug-free
zones, they are nevertheless important for "sustaining community norms"
against the exposure of children to drug use.

The stance of the National Crime Prevention Council (NCPC) is typical of
this line of thinking. (You may remember the NCPC from its mascot, the
trench-coat-wearing cartoon dog, McGruff, who encourages kids to "Take a
bite out of crime!") Jim Kopple, senior vice-president at the council and a
former assistant school superintendent in Wichita, Kan., acknowledges that
drug-free zones have done essentially nothing of what they were intended to
do. And he is concerned about the systematic prosecutorial bias they've
created against inner cities.

But, he counters, "Communities need some way of telling themselves and
potential offenders that they won't tolerate the exposure of their children
to drugs, and especially that they won't tolerate drug dealers preying on
them."

Despite Kopple's tentative defense of zone-based sentencing laws, he
emphasizes that he and his organization--and increasingly, other groups
like it--are urging a more balanced approach to the problem, particularly
one that emphasizes reducing demand through treatment.

Among the other important potential changes which Kopple's group might
embrace are a reversal of the multiplication, as well as a substantial
reduction in the size, of drug-free zones.

The pervasiveness and the huge radii of the zones are to blame for most of
what makes them ineffective as well as troubling.

Drug-free zones should be limited to a tight, easily understandable
category of obviously kid-inhabited public places (say, schools and
playgrounds), and they should be reduced in size to the immediate areas
surrounding the places they concern.

They should also take effect only when children are actually in school.

These changes would go a long way toward achieving the law's original
goal--keeping drug dealers away from kids. It would also reduce the ratio
of "incidental" zone-based charges--e.g., charges against someone arrested
while driving his car through a zone or while sitting in her apartment on a
Saturday night.

No less importantly, though, scaling back drug-free zones would greatly
mitigate the suburban-urban sentencing disparity, along with its unintended
consequence of landing disproportionate numbers of poor people and
minorities in prison.

Nor is it too much to imagine that such a move might partially restore
inner city residents' faith in the American promise of equality before the law.

Above all, drug-free zone legislation must include institutional resources
for the vigorous monitoring of its effectiveness. The Omnibus Crime Control
Act of 1990--sponsored by Sen. Joseph Biden (D-Del.)--did authorize the
attorney general to design a program to evaluate the effectiveness of
drug-free school zone enforcement efforts.

But no appropriations were ever made, no evaluations were ever conducted,
and no report was ever written. There really is no excuse for this kind of
laxity among the architects of laws that rest on such dubious empirical
assumptions as drug-free zones do. Just as it is foolish to make a major
legislative change without evidence of a major problem, it's no less
foolish to take a major legislative initiative without evidence that it
would--or could possibly--remedy the problem it addresses.