Drug Free Zones, Race, And Sentencing Dilution
posted by Dan Filler
A recent report from the Justice Policy Institute, Disparity By Design, reviews the use of “drug free zones”. Almost every state has adopted sentencing enhancements for individuals convicted of selling drugs within a set distance from schools or other drug-sensitive locations. In many jurisdictions, these zones reach a thousand feet (more or less) from the targeted drug-free site. In my home state, Alabama, any drug sale within three miles of any school (including universities) results in a mandatory five year prison term. As the Justice Policy Institute points out, this means that pretty much the entire core of the city of Birmingham is a drug free zone.
Whatever one may think of anti-drug policy, these drug free zones are very problematic. The Justice Policy Institute study points out one key reason: these rules have a substantially disparate racial impact. This disparity occurs because drug free zones have their greatest impact in high density areas, and because minorities – particularly African-Americans – are disproportionately concentrated in such areas. Though I haven’t studied the matter, I suspect that much of the impetus for these zones came from empowered suburban parents desperate to keep the drug menace out of their idyllic suburban school systems. As Joel Best showed in Threatened Children the push for many child protection laws – ranging from Megan’s Laws to these drug provisions – is typically provided by a relatively small coterie of activists who maintain their power and profile by promoting new child-protection legislation. My guess is that these individuals and groups did not set out to produce a law with a disparate racial impact. But just as in the case of Megan’s Laws – which I have shown have disparate race effects – nobody bothered to notice that these laws would almost inevitably lead to race disparities. Given the demographics of drug crimes, this impact simply cannot have been a surprise. (As for those states that make public housing a drug-free zone, matters are more complex. On one hand, the likelihood of disparate race effects is self-evident. On the other, some scholars – like Dan Kahan and Tracey Meares – might argue that the fact that these provisions are endorsed by representatives of minority communities effectively immunizes them from the disparate impact critique.)
There is a second problem with these laws, however. They undermine their very purpose. If the goal of these provisions was to deter drug sales within close proximity of schools, they should have created stronger sentences for crimes committed at the real site of risk. By expanding these zones far beyond schools, drug sellers cease to view schools as protected areas. Instead, as a practical matter, these zones simply increase the general punishment for drug sales. Some people may think this is a fine idea, but these people need to recognize that in doing so, they have diluted any special protection for schools. Not surprisingly, the study showed that these zones did not have a deterrent effect.
Kudos again to the Birmingham News for challenging Alabama’s expansive zones as bad criminal justice policy.
Hat tip: Doug Berman
March 30, 2006 at 1:00 am
Posted in: Criminal Law
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Responses (2)
MJ - March 30, 2006 at 7:21 am
“[T]he push for many child protection laws – ranging from Megan’s Laws to these drug provisions – is typically provided by a relatively small coterie of activists who maintain their power and profile by promoting new child-protection legislation.”
Even if true, 1) They still have to convince a majority of an elected body – selected from that jurisdiction to represent the interests of that jurisdiction – to pass the laws. 2) You aren’t saying that these laws don’t have serious majority support among voters and citizens are you? People take the safety of their children pretty damn seriously 3) If you think that drug traffickers don’t understand that there are enhanced penalties and try to avoid school zones -you have never worked or talked to anyone who worked in the grand jury section of a major U.S. city. 4) Bad criminal justice policy? Isn’t violent and property crime down about 30% in the last 15 years? I don’t hear average citizens, communities, or really anyone besides university professors and defense attorneys, complaining about longer prison sentences and sentence enhancements for drug traffickers. We’ve weighed the costs and benefits of these tougher laws and decided the benefits outweigh the costs.
Lex Aquila - March 31, 2006 at 1:13 pm
I share with you some background sentiments w/r/t the drug laws but not Megan’s law. Further to the disparate impact argument, you’ve argued from a disparate result that these laws are “very problematic.” Why? Among other questions, I wonder whether the problem is with the laws or their execution and administration.
Additionally, what you are apparently saying re Birmingham, for example, is that the incident rate of actually nabbed “particularly African-American” drug dealers in school zones is disproportionate to the general population (or, giving you the benefit of the doubt, the population of actually nabbed drug dealers in school zones (narrower, but more accurate) or the population of caught and uncaught drug dealers in school zones (broader, and more guesswork)). I hope most people do not endorse your pessimistic extrapolation from this purported finding that “this impact simply cannot have been a surprise.” I read you to be saying this impact was intentional–at least reckless. There are aleph not reasons that this extrapolation is much more “problematic” than the finding of impact itself. Among them, aspects of your argument are subject to post hoc ergo propter hoc attack. While I enjoy the use of narrative in criminal law (and basically all aspects of law), I do not think the “White Narrative” behind adoption of these Megan’s Laws does much to salvage your argument. You claim the Narrative suggested these laws were adopted to combat white-on-white crime. Well, if that’s so, how do you get from the intention to combat white-on-white crime to the alleged intentional disparate impact on “particularly African-Americans.”
Furthermore, you fail to account for recidivism in your analysis of disparate impacts. I think the argument from uneven application of criminal laws has more force in a scenario such as the different treatment of crack versus powder cocaine. But, here, with the exception of the more ridiculous cases caught by some Megan’s Laws (such as romeo-juliet stuff), the empirical evidence is *overwhelming* that sex offenders are recidivist. Therefore, the problem with Megan’s Laws in particular is not that a higher rate of “particularly African-Americans” are being subjected to the laws, if anything, your study suggests that we have a ways to go in executing our laws vis-a-vis white offenders. Thus, the people on the rolls, at least child sex offenders, rapists, and the like, should be on them, regardless of race or impact. (This last point doesn’t apply to drug free zones, of course.) To the extent, you disagree with this proposition, I think you are actually simply opposed to Megan’s Laws. That, in my opinion, is not a sound basis from which to attempt a quasi-scientific study of the laws’ impact, results, and the intentions of those who enacted the law.
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