Pauline Vilensky
Geck
Government 6
23 April 2018
Designed Disparity: the War on Drugs
The continually skyrocketing rates of black drug arrests does not indicate a higher rate of black drug usage. As detailed in Targeting Blacks: Drug Law Enforcement and Race in the United States, blacks and whites take part in criminal drug possession and sales at proportional rates. But because the “war on drugs” targets urban and minority communities, black drug offenders are the foremost victims. The burden of arrest and incarceration falls unjustly upon black men and women, their families and communities. This essay will examine the violation of constitutional and civil rights as seen through the use of “Drug-Free Zone” laws. Drug-free zone laws provide heightened punishment for drug offenses that take place within designated areas surrounding schools, public housing projects, parks and playgrounds, and other prohibited locations. The typical statute establishes a 1,000-foot zone surrounding schools and equal or smaller zones for other structures or locations, but the size of the zone can vary from 300 feet to three miles depending the state. Most drug-free zones apply only to manufacture, distribution, or possession of a controlled substance with intent to distribute, but a few also cover simple drug possession. A handful of states make drug activity in a prohibited zone a separate, stand-alone offense, but in most states the drug-free zone charge is an enhancement to the penalty imposed for the underlying possession or sale offense. The penalties and penalty enhancements assigned to drug-free zone violations vary widely, but in many states they include mandatory or presumptive sentences. Like other mandatory minimum drug sentencing laws, these statutes have contributed to prison population growth, and to racial and ethnic disparity in the use of incarceration.
Defendants have claimed that drug-free zone laws violate the constitutional guarantee of equal protection by arbitrarily subjecting certain individuals to harsher punishment than that imposed on others convicted of similar conduct outside drug-free zones. Some have argued that the statutes violate the principle of equal protection because the enhanced penalties are more likely to apply to people of color who live in densely populated urban neighborhoods than to whites who are more likely to live in suburbs and rural areas where the zones are less prevalent. Both variants of the equal protection claim have been rejected by appellate courts. A New Jersey court observed that lawmakers have wide latitude in establishing laws to further legitimate public purposes (State v. Rodriguez).
Drug-free zone laws and convictions have been challenged on grounds that these laws violate due process because they do not require the state to prove that the defendant knowingly and intentionally violated the prohibition against conducting drug activities in a prohibited zone. Defendants have argued that they were unaware of the presence of a drug-free zone, removing the element of “mens rea” – guilty knowledge – from their conduct. In one case, a Washington state defendant contended that he should not receive an enhanced sentence because there was no way for him to know that he was within 1,000 feet of the “school” in question(State v. Altick). Defendants have also mounted due process challenges by contending that their conduct did not violate the purpose of the law, which is to protect children. An Ohio man who was charged under that state’s drug-free zone law for a transaction that took place in his home argued that sale of a small amount of cocaine to another adult in a private residence posed no direct risk to schoolchildren, and that the statute therefore could not apply(State v. Vasquez).The appellate court held, to the contrary, that Ohio’s drug-free zone statute says what it means, and means what it says – children or no – noting that the language of the statute was clear on its face without resort to the rules of statutory construction. The court considered the dangers of drug activity in the vicinity of schools and schoolchildren to be self-evident, and the defendant’s conduct to fall squarely within the provisions of the law.
Finally, defendants have challenged the use of drug-free zone laws claiming that the application exceeded the intent of the legislature and/or a strict reading of the statute. Many of these challenges center on the definition of “school” and “school grounds”. Defining “school” for purpose of a school-zone statute is one of the few areas where courts have set limits on drug-free zone laws. Courts in Indiana and Wisconsin ruled that colleges and universities are not “schools” for purposes of their respective drug-free zone statutes(Pridgeon v. State), while courts in Florida, Indiana and Massachusetts excluded pre-schools from their definitions(State v. Roland). On the question of how the distance between the location of the incident and the protected location should be measured, however, courts have consistently applied the most expansive definition possible: a straight line. In 1992, an Indiana appellate court upheld the conviction of a man for delivering marijuana to an undercover officer in his second-floor apartment, which happened to lie 959 feet from the property line of the nearest school building according to an expert surveyor(Steelman v. State). The defendant contended that the “line of sight” measurement used by the state’s surveyor was inappropriate because neither he nor children could proceed in a straight line through barriers such as buildings, fences and creeks. The appellate court concluded otherwise, holding that the law’s intent was clear: to punish those who deal drugs within 1,000 feet of school property. The practice of measuring zones ina straight line or “as the crow flies” has consistently been endorsed by other state courts and federal courts. With few exceptions, courts have also applied a broad reading to drug-free zone laws by applying them to cases of drug possession with intent to distribute where no proof was offered that the intended place of distribution also lay within a drug-free zone. A Washington state appellate court found that the phrase “within one thousand feet of the perimeter of the school grounds” applied to the word “possession” and not the word “deliver” in the phrase “manufacturing, selling, delivering, or possessing with intent to manufacture, sell or deliver.” The court held that an individual arrested while passing through a drug-free zone in possession of drugs he or she intends to distribute elsewhere is nonetheless subject to a drug-free zone enhancement(State v. Thomas).
Looking at state-specific usage of school zones may be the most damning evidence for its illegality. In the New Jersey commission’s December 2005 report to legislature, Judge Hoffman, the commission’s chairman, charged that these laws result in “a devastatingly disproportionate impact on New Jersey’s minority community.” According to the commissioners, the problem stems primarily from the “urban effect” of the law’s current zone configuration. They argue that the enormous racial disparity produced by the school- zone enhancement is a function of differing population density in communities where the majority of whites and people of color live. As Judge Hoffman has described, “Giant unbroken drug-free zones…actually dilute the special protection the laws are supposed to offer.” He says such overlapping zones create “a net so large that we pull in every fish whether it’s the type of fish we’re looking for or not.” Robert Bernardi, who represented the state’s prosecutors on the commission, put it this way: “You’re virtually in a school zone from the time you step into the city. That would not be the case in the suburbs.”
New Jersey is the most densely populated state in the nation. The state’s dense urban areas are predominantly populated by blacks and Hispanics, while the suburbs and rural areas are predominantly white. As the number of schools, parks, and housing projects per square mile increases, so does the likelihood of being caught in a protected zone: “[T]he more densely populated the area, the greater number of schools. The more schools per square mile, the greater number of drug-free zones. The greater number of zones in a municipality, the more the zones intersect with one another, creating oddly shaped, overlapping entities that leave little else unencumbered”(Table 1.28B Illicit Drug Use in Lifetime).
A substantial body of evidence from research and policy studies indicates that drug-free zone laws, in their typical configuration, are as ineffective in reducing the sale or use of drugs as they are in protecting school children – and the role these laws play to increase unwarranted racial disparity is well documented.
Works Cited
State v. Rodriguez, 225 N.J. Super. 466, 542 A.2d 966 (1988).
State v. Altick, 82 Ohio App. 3d 240, 611 N.E.2d 863 (1992).
State v. Vasquez, 80 Wash. App. 5, 906 P.2d 351 (1995).
Pridgeon v. State, 569 N.E.2d 722 (Ind. App. 1991); and State v. Andrews, 171 Wis. 2d 217, 491 N.W.2d 504 (1992).
State v. Roland, 577 So. 2d 680, (Fla. App. D4 1991); French v. State, 778 N.E.2d 816 (Ind. 2002); and Com. v. Burke, 44 Mass. App. Ct. 76, 687
N.E.2d 1279 (1997).
Steelman v. State, 602 N.E.2d 152 (Ind. App. 1992).
State v. Thomas, 68 Wash. App. 268, 843 P.2d 540 (1992).
Table 1.28B Illicit Drug Use in Lifetime, Past Year, and Past Month among Persons Aged 12 or Older, by Demographic Characteristics: Percentages. 2003 and 2004 http://www.oas.samhsa.gov/NSDUH/2k4nsduh/2k4tabs/Sect1peTabs1to66.htm,