Riding Nancy Reagan’s “Just Say No” express through the crack epidemic of the mid-1980s, police jurisdictions across the country found a way to extend their reach and strengthen their grasp on drug offenders: Throw kids into the mix.
As more states adopted their own versions of the Drug-Free School Zone statute, prosecutors gained a tool for dealing with drug offenders, while opponents argued the statutes are too broad and even ineffective.
The Tennessee drug-free school zone statute increases — or “enhances,” to use the official parlance — the penalty for drug offenses that occur on the grounds of any school or within 1,000 feet of a public or private elementary school, middle school, secondary school, preschool, child care agency, public library or recreational center, such as a public park.
The penalty is one felony level higher than the standard violation, and fines range from $10,000 for a class E felony to $100,000 for a class A felony.
“Drug-free zones is really the primary enhancer that has the biggest hammer,” said Davidson County District Attorney General Torry Johnson.
Drug-free school zones have been in Tennessee law since 1995, but charges or prosecutions were infrequent in Davidson County until about three years ago. Two things had to fall into place for that to happen: police awareness and ability.
“When the law was first enacted … it was not something that the police were really aware of or that they had an easy time determining [when to charge the offense],” Johnson said.
Prosecutors used maps to tack on the drug-free school zone charge after arrests and before cases went to trial. Technology has made the process easier, and with greater police awareness about when to add the charge, the number of drug-free school zone cases has jumped in the last few years.
“That’s resulted in a huge increase in the number of cases that are charged that way,” Johnson said. “When [former police chief Ronal] Serpas got the word out to the department, they took it upon themselves, and they have been very aggressive in charging those types of crimes now.”
Johnson estimates his office saw between 20 and 40 such cases before the police department got “clued-in on it.” Now they ring up 400 or so such charges a year.
Assigned to Metro police’s Case Preparation Division, Sgt. David Liles works out of the district attorney’s office and handles drug-free school zone mapping. These days it’s as easy as Liles entering the address from a drug arrest into a computer. By tracing his cursor over to the nearest potential drug-free zone, Liles can see the distance between arrest and zone. If the location is within a 1,000-foot radius of one of the forbidden locales, he tags it.
Still, computers don’t have the final say on distance. As a case goes to criminal court, someone must do the actual walk-behind-a-measuring-wheel act to confirm the distance.
The vast majority of cases involving the enhanced penalty of drug-free school zone charges are settled before going to trial. “We use it as a negotiating tool,” Johnson said.
“It’s a very powerful hammer,” said Assistant Public Defender Melissa Harrison, of the Davidson County Public Defender’s Office.
While the defendant might not be convicted of the zone charge, prosecutors can offer to drop that charge in exchange for a defendant agreeing to a higher sentence — essentially not getting some concession that might have been available in the absence of the enhanced penalty.
“They can settle one for maybe higher than they could settle it without the school-zone charge,” Harrison said. “They’ll offer to reduce it a level, but that’s the level you would have started with anyway.”
When drug-free school zone cases, maybe five to 10 a year according to Johnson, go to trial, prosecutors come out on top more often than not.
“We settle a lot of these cases upon pleas of guilty to enhanced punishments,” Johnson said, “punishments that we couldn’t have gotten but for the threat of the drug-free school zone case.”
Zones also problematic
From the defense’s standpoint, the breadth
of the drug-free school zone statute presents great problems.
“Well, it’s very difficult because the statute is very broad, and it’s been interpreted very broadly,” Harrison said. “So it’s very difficult to defend against.”
Harrison points out there are no safeguards to preventing police from intentionally stopping someone in a school zone, and “the other thing is that almost anywhere is within 1,000 feet of a school.”
What’s more, drug-free school zone charges aren’t limited to the operating hours or seasons of a school.
“You might think that the purpose is to protect schoolchildren,” Harrison said, “but if you can be caught in a school zone any time, day or night, that would seem to be more general than what was intended by the law.”
In the past few years, pleas to re-examine the drug-free school zone have gotten louder, particularly in the Northeast.
In December 2005, a New Jersey commission that reviews criminal sentencing referred to the “urban effect” of drug-free school zones disproportionately affecting minority populations. And a January 2006 New York Times editorial on the New Jersey commission’s recommendation to revise drug-free sentencing mandates stated: “The law appears to have had no impact at all on the actual
pattern of drug dealing. But it has created
a profoundly discriminatory sentencing pattern, which treats minority defendants unfairly while undermining confidence in the criminal justice system.”
The Justice Policy Institute released a study titled “Disparity by Design: How Drug-free Zone Laws Impact Racial Disparity — and Fail to Protect Youth” in March 2006, showing a map of New Haven, Conn., that illustrated how the reach of that city’s numerous 1,500-foot drug-free school zone buffers encompassed nearly the entire city.
In January, New Jersey backed off its own drug-free school zone statute, doing away with mandatory minimum sentences and giving judges there more leeway to consider a defendant’s history.
According to Harrison, there’s not hard evidence that the zones in Nashville are leading to racial disparity. But every one of her drug-free school zone cases has involved a minority defendant.