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 rgime, though it has the same effect, is not even on the nation’s radar screen.
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.
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.”
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.”
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.