This article was written by Aleks Kajstura & Peter Wagner November/December 2008 issue of Poverty & Race.
Most states give longer mandatory sentences to Black and Latino drug defendants under flawed statutes that punish people based not on the offense committed but on where they live. Originally intended to move drug activity away from schools, the laws have created a two-tier system of justice: one for dense urban areas where schools are everywhere and another for rural and suburban areas, where schools are relatively few and far between.
A new report by the Prison Policy Initiative, The Geography of Punishment: How Huge Sentencing Enhancement Zones Harm Communities, Fail to Protect Children supported by a PRRAC research/advocacy grant and a summer stipend through the Benjamin N. Cardozo School of Law examined the sentencing enhancement law in Hampden County, located in Western Massachusetts. We were able to show that setting sentence lengths on where an offense was committed doesn’t stop drugs, can’t ever stop drugs and has racially discriminatory effects.
These laws, sometimes called “school zones” or “drug-free zones”, vary from state to state, but the specifics of the Massachusetts statute are common, creating a mandatory sentence of at least two years for certain offenses that occur within 1,000 feet of a school and 100 feet of a park. States began passing these laws in the late 1980s, intending them to work as a geographic deterrent, identifying specific areas where children gather and using the threat of an enhanced penalty to drive drug offenders elsewhere. However, the law does not require that the defendant be aware of the zone, and applies regardless of proximity to the protected location, whether school is in session and whether children are present.
Previous research has shown that zone laws fail to move drug dealers away from schools, and suggested that extensive drug-free zones result in harsher sentences for Black and Latino defendants because they tend to live in dense cities blanketed by overlapping zones. Our report is the first to quantify the effect of zone laws on Black and Latino populations, and the first to offer comparisons between urban and rural areas. The report also directly examined whether the Massachusetts legislature was right to assume that 1,000 feet was an appropriate distance for a geographically-based deterrent.
We set out to answer two questions. First, does Massachusetts’s drug-free zone law punish certain populations more harshly because of where they live? Secondly, is 1,000 feet a logical or effective distance for a geography-based sentencing enhancement?
We chose to focus on Hampden County, which contains both cities and very rural towns. Hampden County is twice as likely to charge its citizens with drug offenses as the state as a whole, and uses the zone law more than any other Massachusetts county. As a percentage of its total population, Hampden has the second largest minority population in Massachusetts, after Suffolk County (Boston). The county’s internal diversity and frequent use of the zone law made it an ideal place to study the geographical make-up of these zones.
In Hampden County, we found that blanketing urban areas in overlapping enhancement zones makes Black, Latino, urban and poor people disproportionately eligible for the enhanced sentence, compared to White, rural and suburban populations. This disparity is not warranted by drug usage rates among children, which are similar across all of these populations. Twenty-nine percent of the Whites in Hampden County live in zones, but 52% of the Blacks and Latinos do. Latinos are more than twice as likely as Whites to live in a zone. As a result, almost 8 out of 10 people convicted of zone offenses are Black or Latino. Residents of urban areas are five times more likely to live in a zone than those in rural areas.
The legislature wanted to protect children, but choosing an expansive distance of 1,000 feet ensured that the law could not operate as intended to relocate drug offenses away from schools. Drug offenses are already criminal; the legislature’s separate intent to protect children is evidenced by this separate penalty. Counter-intuitively, by choosing a large distance that leaves no place for the offense to relocate to, the legislature afforded less protection to children.
A law aimed at reducing children’s exposure to drugs should punish those specific crimes, not generalize about the nature of the activity within a huge area. Though the sentencing enhancement zone statute was written for an important purpose, its fundamental flaws ensure its complete ineffectiveness as a deterrent. In addition, it does insidious and devastating harm to urban, minority and poor populations.
We determined that the zones are too large for someone to reliably estimate and avoid. Deterrence works when there is a specific harsh consequence to a limited activity. Deterrence-based laws fail to work where there is no incentive to alter one’s actions. To create a safety zone around schools, the area to be protected needs to be small enough that a person choosing to engage in prohibited activities can choose to go elsewhere to avoid higher penalties. This law creates zones that are so big that it is impossible to determine where they start and end, and therefore they do not work to move dangerous activities away from children.
The report offers three suggestions to improve the law’s ability to protect children from the drug trade and reduce its disproportionate effect on urban, Black, Latino and poor populations.
First, the statute could be amended to exempt circumstances where children are not present or endangered, such as drug sales that take place in private dwellings, conducted in the absence of children.
Second, the state could repeal the school zone law and enforce existing laws that explicitly address the goal of the zone statute: selling drugs to children or involving them in the drug trade.
The third option, and the politically most expedient to implement, is to reduce the zones to 100 feet around schools in order to match the distance already designated for parks and require that the property line of designated areas be marked.
A smaller, marked distance would be easier for people to see, and because it would apply to only a small portion of urban areas it would more effectively shift drug activity away from schools and parks. Our report found that smaller zones would also drastically reduce the current lawâ€™s disparity in sentencing.
The Republican (Springfield, MA) newspaper gave our report front-page coverage. Reflecting the changing political tide, the article included supportive quotes from local officials who have historically been opponents of criminal justice reform. Interest in reform is growing statewide. The Massachusetts Joint Committee on the Judiciary recently introduced a bill in the House that would, among other changes, reduce the zones to 100 feet. Although the legislative session ended before action on the bill was taken, the stage is set for more organizing and further progress in the near future.