Cases Question Fairness and Effectiveness Of Laws Creating Drug-Free School Zones

By Lisa Jennings — January 24, 1990 11 min read
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Drug-free school-zone laws, a politically popular weapon in the war on drugs, have entered a period of legal testing, experts say, where both their effectiveness and the fairness of their implementation are being questioned.

Though only a handful of such challenges have made it to court thus far--and those all at the local-court level--those watching developments note that some cases have raised the specter of racial and ethnic discrimination in an area that otherwise has enjoyed wide-based public support.

Since New Jersey adopted the first such law in 1987, at least 28 other states have followed suit. The laws, fashioned after a similar federal statute, mandate stiffer penalties for those arrested on drug charges within a designated distance from a school.

The laws were given a boost for the upcoming legislative season, when President Bush urged their adoption in a September speech to the nation on drugs.

But as more and more drug offenders are arrested under the stricter laws, and their cases work their way through the judicial system, the questions on fairness and impact have been raised by public defenders.

Mary Gibbons, one of a group of Los Angeles defense lawyers who have filed a complaint charging that the U.S. Attorney’s office there has unfairly administered the schoolyard law, said such statutes have amounted to nothing more than political rhetoric and an attempt to allay the community’s frustrations over the growing drug scourge.

“These laws are random and extreme penalties that have nothing to do with protecting schools,” she said, despite the fact that good intentions may be behind them.

“What’s really sad,” Ms. Gibbons added, “is that educators are being duped into thinking they are getting more protection than they really are.”

Educators, for the most part, disagree with that assessment. Though there is as yet no hard evidence that the school-zone laws actually reduce the amount of drug-related crime around schools, anecdotal evidence from many parts of the country supports that contention.

And most educators express sentiments similar to those of Ron Susswein, New Jersey’s assistant attorney general and one of those most heavily involved with that state’s law.

“The idea of ‘out of sight, out of mind’ is an important principle here,” he said. “A drug-education curriculum will not work if a student can look out of a classroom window and watch a drug deal taking place.”

“We know that we can’t eliminate drug traffic altogether with this plan,” Mr. Susswein added, “but we hope at least to limit open and notorious drug traffic around schools. The law also gets across the message that drug use will not be tolerated.”

State Laws Vary

President Bush urged in his drug message that every state adopt a drug-free school-zone law to match the 1986 federal law, which requires a mandatory sentence without parole for those arrested within 1,000 feet of a school.

Although the federal Drug Free Schools and Communities Act adopted last year does not offer any specific incentives for passing school-zone laws, it does allow governors to use federal funds to implement them.

There is some disagreement over how many states now have such laws in effect. Severin L. Sorensen, deputy director of the drug task force of the National Association of Chiefs of Police--the group that originated the concept--said that 36 states and the District of Columbia now have such laws, and that bills are pending in five more states.

Some states in his count, he said, have had “control” laws for years, which amount to the same thing.

The National Conference of State Legislatures reports that 29 states have laws on the books that specifically use the phrase “drug-free school zones,” following the federal statute.

The state laws vary, Mr. Sorensen said, but they all mirror the federal statute in mandating stiffer penalties--commonly a mandatory sentence without parole--for anyone convicted of selling, using, or distributing drugs within a designated distance of school grounds.

The distance ranges from simply “school grounds,” which is designated in Alaska’s law, to a 3-mile zone around schools, covered in Alabama’s law.

Mr. Sorensen said he believes drug arrests have increased under the new laws. But it is too soon to tell, he said, whether they have deterred drug crime around schools.

“Preliminary evidence would show some type of relationship, but no state has had enough experience with the law to tell how well it may work,” said the police-chiefs official.

New Jersey’s Model

Enforcement under the trend-setting New Jersey law, considered to be among the most strictly enforced, provides some indication of the pace of legal activity.

In 1988, 6,500 drug arrests were made in school zones, according to Mr. Susswein. A total of 4,700 arrests were made in the first six months of 1989. In those cases, only 599 convictions had been returned as of late December, Mr. Susswein said, noting that the figure is not surprising, given the lag time in the court system.

In addition to mandatory sentences, the New Jersey statute allows the state to revoke the driver’s license of anyone convicted of drug crimes committed within 1,000 feet of a school for six months after his sentence has been served.

It also requires police and schools to work out written plans to combat drugs in the community.

An amendment to the law establishes stricter penalties still for those charged with the so-called “Fagan offense,” named after the character in Oliver Twist who teaches children to become pickpockets. Those who use children to sell drugs in drug-free zones, or who sell drugs to children there, can expect a minimum five-year sentence to be tacked onto their other charges.

“You don’t want to go before a jury in New Jersey with that charge,’' Mr. Susswein said.

‘Operation CRADLE’

In Broward County, Fla., said Police Commander Linda Di Santo, a similar “zero tolerance” message conveyed in the state school-zone law has helped police cut down not only on drug crimes around schools, but also on other forms of crime.

Ms. Di Santo is director of the county’s Coordinated Anti-Drug Law Enforcement program, or Operation cradle. It coordinates an increased patrol of school zones using state, county, and city police officers.

Begun in October 1988, the Broward project in its first year accounted for about 517 arrests, according to Ms. Di Santo’s estimates. And of those, she said, one out of four were drug dealers.

A house-to-house survey of Broward County residents living near schools--taken both before and after the Operation cradle began--has revealed that neighbors feel safer, have a more positive image of police officers, and report fewer outsiders coming into the area to buy drugs.

It also found a 58 percent reduction in crimes against persons and a 48 percent drop in property crimes.

“I heard from an informant recently that drug dealers are actually measuring 1,000 feet away from schools to make sure they don’t cross zone lines,” Ms. Di Santo said. “That tells me we are really doing our job.”

‘Applied Abuse of Power’?

But last February, Florida’s drug-free school-zone law was challenged by a group of Broward County public defenders, who argued that it was “vague, overbroad, and an applied abuse of police power.”

A local circuit-court judge dismissed charges against two defendants on the basis of that argument. But Florida’s fourth-district court of appeals reversed the dismissal, upholding the drug-free-zone law’s constitutionality under state law.

A similar attack on Virginia’s school-zone law led this month to the dismissal of charges against four people by a circuit-court judge in Alexandria. The judge determined that the drug sales had not occurred while school was in session and that there was no harm done to children or damage to school property.

Circuit Court Judge Alfred D. Swersky, in dropping the charges, said that because the drug transactions happened when the school buildings were unoccupied, “the legislative purpose of the statute was not served.” All four defendants still face cocaine-distribution charges.

Melinda Douglas, the Alexandria, Va., public defender, expressed lingering doubts, however, about the law’s impact on due process.

“My problem with it,” she said, “is that it creates this irrebutable assumption that any conduct within these zones is dangerous to children, without allowing those arrested under such laws a chance to show that their conduct has no relationship to minors or their environment.”

Judge Swersky did not declare the law unconstitutional. In his ruling, he wrote that the statute was intended “to protect the integrity of the school and its environs,” and that “the state legislature has the authority to enact legislation to fulfill such goals.”

John E. Cloch, commonwealth’s attorney for Alexandria, said he plans to file an appeal of the judge’s ruling because of its dismissal of charges.

There have been a few such successful challenges of drug-free school-zone laws in other states, he said, but only in lower courts, and only on very specific details of each state’s law.

Because the laws are so new, Mr. Cloch added, there have been few appellate rulings, which hold more significance for legal precedent.

“All of us appealing such laws are really venturing into new judicial frontiers,” Mr. Cloch said.

Discrimination Charges in L.A.

In Los Angeles, the judicial frontier involves evidence that a group of defense attorneys claims it has showing a pattern of discrimination in applying the state’s school-zone law.

Lawyers in the U.S. Attorney’s office there will face a panel of federal judges next month to respond to allegations that blacks and Hispanics are prosecuted unfairly under the law.

The hearing, scheduled for Feb. 5, is on a motion filed by lawyers with the local public defender’s office, and one private-practice lawyer, seeking the dismissal of about 15 pending cases involving school-zone arrests.

The motion argues that law-enforcement officers have unfairly targeted schools in poor and minority-populated neighborhoods in their efforts to crack down on drug crime.

In addition, it contends that blacks and Hispanics have received stiffer punishments than Caucasians arrested under similar circumstances.

According to court documents, a total of 95 individuals arrested under the school-zone law in California’s central district have been referred to federal court since Los Angeles began a crackdown on drug crimes near schools in December 1987.

In California, as in other states with school-zone laws, prosecutors have the option of using either the federal or the state statute.

Of the 95 Los Angeles cases prosecuted under the much stricter federal law, the protesting group points out, 91 involved blacks and Hispanics. Only four Caucasians arrested for school-zone drug offenses in the district were transferred to federal court.

The defense lawyers contend that their clients were the victims of selective prosecution. They have requested information from the U.S. Attorney’s Office on the number of cases, and the races, of those who were prosecuted in state courts.

The difference between state and federal prosecution on such cases could mean an additional 20 years in prison, argued Ms. Gibbons.

“It’s a role of the dice that prosecutors are playing only with the lives of blacks and Hispanics,” she said.

The lawsuit also accuses Los Angeles law-enforcement officials of focusing their drug “crackdown” efforts on schools located in minority neighborhoods.

U.S. Attorney Steven G. Madison, who is representing the federal prosecutors, denied the charges of discrimination, and said that defendants who had been transferred to the federal court system had records of previous convictions or were charged with more serious crimes.

A majority of the defendants in school-zone cases are members of minority groups, he agreed, but only because of demographics. “Drugs--and in particular crack--are more of a problem in certain low-income areas, and as it happens in this area, that’s where a lot of minorities live,” he said.

He also maintained that leaders in the minority community would have charged discrimination if the police had focused on white neighborhoods in their crackdown.

School Questions ‘Problematic’

According to Mr. Madison, complaints about the school-zone laws are coming from “only drug dealers and their attorneys.”

But officials with the National Coalition of Advocates for Students, which is researching the issue, especially in terms of drug searches and investigation of juveniles under school-zone laws, may be next.

John Kellogg, a spokesman for the Boston-based coalition, termed the issue “very complex,” and said that the group’s stand is still being debated.

The coalition sees a clear need to become involved, he said, “to both protect the rights of students to attend school safely, and to protect their rights in the event of a drug search.”

Although juveniles--unless tried as adults--are not subject to the stiffer penalties of drug-free school-zone laws, increased police patrol of school neighborhoods is resulting in more arrests among students.

The NCAS, Mr. Kellogg said, is concerned mainly about the increased police presence on and around school campuses.

“This is a discrimination issue,” he said. “The law definitely seems to be falling much more heavily on the shoulders of black males than anyone else.”

Elsewhere, observers note the problematic nature of implementing drug-free school-zone laws.

Dale Jones, a lawyer with the New Jersey public defender’s office, pointed out that questions of fairness are often raised in urban areas, “where just about everywhere is within 1,000 feet of a school.”

The reverse argument has surfaced in a case in Utah.

Lawyers representing a Moab, Utah, man arrested on drug charges near a school argued that the law discriminates against rural residents. Those who live in small towns, they said, are much more likely to live near a school, and thus are subject to a higher risk of criminal culpability.

The Utah Supreme Court disagreed and denied the appeal.

Mr. Madison in Los Angeles speculated that public support for drug-free school-zone laws is often recognized by courts in such circumstances.

“It’s a hard argument to make, that a crack dealer should be let off because police should have arrested a drug dealer somewhere else,” he said.

A version of this article appeared in the January 24, 1990 edition of Education Week as Cases Question Fairness and Effectiveness Of Laws Creating Drug-Free School Zones


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