BOLLARD SPECIAL INVESTIGATION
City Council to consider expansion of “drug-free safe zones”
Fear, not facts, drives push to imprison drug addicts
By Chris Busby
A year or so ago, State Representative Randy Hotham was at the McDonald’s in Rumford. That’s where he got the idea that now promises, over time, to send hundreds of drug addicts into prison for years beyond the terms Maine’s sentencing laws previously dictated.
“One of the young ladies who worked there brought it to my attention,” said Hotham, a Republican lawmaker from Dixfield serving the second year of his first term in the House.
State and federal laws impose stiffer fines and longer prison sentences for drug-related crimes committed within 1,000 feet of public schools. But as the McDonald’s employee pointed out to Hotham that day, those who commit drug crimes near other places where children tend to spend time, like parks and playgrounds, are not subject to these increased penalties.
Hotham said he thought that situation “seems to be sending a mixed message.” He said the state needed to send “a consistent message” to drug dealers: “If you deal in that business where children congregate, you’re going to be in real big trouble.”
Hotham’s solution was to introduce a bill that allows cities and towns to designate parks, playgrounds, athletic fields and other “recreation facilities” frequented by minors as “safe zones.” As is the case within 1,000 feet of public schools, anyone arrested for dealing drugs within 1,000 feet of these areas is subject to an enhanced penalty.
This penalty enhancement bumps the level (or Class) of the drug distribution crime up one notch.
For example, a Class C crime, which carries a minimum sentence of one year and a maximum prison term of five years, would become a Class B crime, with a minimum prison sentence of two years and a maximum of 10 years. Class B crimes committed in a “safe zone” become Class A crimes, which carry a minimum sentence of four years and maximum of 30 years in prison.
Hotham’s bill was considered last spring by the Criminal Justice and Public Safety Committee, a 13-member body made up of state House and Senate members. Rep. Gary Plummer of Windham, a Republican committee member and former Cumberland County Commissioner, was asked about the committee’s discussion of Hotham’s bill.
“I really don’t recall there was great deal of data,” said Plummer, who initially had a difficult time remembering the substance of the legislation during a recent interview with The Bollard. “It was one of those bills presented where there didn’t appear to be any opposition.
“The drug dealers didn’t show up and testify against it,” he quipped.
The bill – titled “An Act to Protect Children Using Maine’s Athletic Fields and Parks from Drug Dealers” – passed the committee unanimously. As is not uncommon with bills that receive unanimous committee endorsements, it then passed in the Legislature “under the gavel” – with no further debate or roll call vote by individual members.
The Speaker of the House reads the number and title of the bill, then “hesitates for three-tenths of a second,” Plummer explained, “and if nobody jumps up, it is passed.”
Gov. John Baldacci signed the bill into law last summer, and it went into effect last fall.
Drug warriors (from left): State Rep. Randy Hotham, State Sen. Paul Davis (co-sponsor of Hotham’s bill), State Rep. Gary Plummer, Gov. John Baldacci. (photos/Maine House of Representatives, Maine Senate, Office of the Governor)
Since then, the city of Westbrook has implemented the new zones. Police Chief Paul McCarthy said the zones cover most of the city’s commercial districts, where they overlap considerably, and many neighborhoods and apartment complexes with playgrounds.
South Portland Police Chief Edward Googins said his department has already identified parks and other recreation areas to be included in the zones, and will soon seek city council approval to establish them.
Lt. David Kloth of Falmouth’s police force said he was unaware of the new law, but appraised of it, he said, “I’m sure we would be in favor of it.” The wealthy, suburban town has a serious problem with illegal drugs. “We’re like all communities,” said Lt. Kloth. “Drugs are everywhere now. There’s a lot of drug-driven crime.”
In Portland, Lt. Anthony Ward, who heads the department’s community policing unit, identified roughly 140 parks, playgrounds, athletic fields and recreation facilities that he feels should be designated “safe zones.” (Click here to read the sidebar to this article, “Signs, signs, everywhere signs…,” which includes a list of the sites Lt. Ward proposed.)
On Jan. 12, the Portland City Council’s Public Safety Committee voted unanimously, 3-0, to establish the zones, but removed several privately owned properties from Lt. Ward’s list – including Yankee Lanes, Happy Wheels and the Center for Cultural Exchange.
Committee members voiced concern that the city lacks the authority to post signs on private property. In fact, private property can be designated a “safe zone” if the property owner gives permission. Westbrook has posted day care centers and many other private properties after requesting, and receiving, permission from business owners. “We have not had anyone say no,” said Chief McCarthy.
The full Portland City Council is expected to consider the zones at its Feb. 6 meeting.
Since early January, The Bollard has conducted interviews with over a dozen lawmakers, law enforcement officials and state officials with expertise in drug law enforcement and drug abuse issues. None could provide, cite or specifically recall seeing any documentation indicating that “safe zones” are an effective deterrent to drug crime. These sources include the bill’s sponsor, Rep. Hotham; lawmakers who voted in favor of the zones, including Rep. Plummer and Portland City Councilors Cheryl Leeman, Dr. Donna Carr and Public Safety Committee Chairman Will Gorham; and Roy McKinney, Director of the Maine Drug Enforcement Agency.
Materials submitted by Portland Police Chief Tim Burton to the city’s Public Safety Committee contain no statistics, analysis or other data to justify implementation of the new zones. Instead, a three-sentence paragraph notes the following: “It is unfortunate that Portland has experienced an increase in the availability and use of illegal drugs. In addition, there has been an increase in the criminal activity that surrounds the abuse of these drugs. This proposal is another step in the police response to this public safety threat.”
Lt. Ward did not return a call seeking comment.
At the Jan. 12 Public Safety Committee meeting, Deputy Chief Joe Loughlin said questions about the zones should be directed to Chief Burton.
Burton did not return calls seeking comment. Seen outside the council’s Jan. 18 meeting, Burton acknowledged that he had received The Bollard‘s interview request, and said he would respond.
He did not.
Facts and fictions
Hard data and professional analysis of the effectiveness of “safe zones” is scarce, but one recent study in New Jersey is attracting national attention – and calls for a major reduction in the zones at the same time Maine is significantly expanding them.
In January 2004, New Jersey’s State Legislature created a 15-member commission to review sentencing guidelines for all types of crimes. As noted in the commission’s report, the group made analysis of drug-free zones a priority, “because of the intuition, shared by many individuals involved in the administration of the criminal justice system, that the [drug zone] law was neither fair nor effective in application.”
New Jersey has 1,000-foot drug-free zones around its public schools, and 500-foot zones around public parks, public housing projects and other public areas. The Commission’s report said neither law creating the zones had previously been studied or reviewed.
The bipartisan commission included state lawmakers, the Chief Justice of the state’s Supreme Court, the state Attorney General, the Commissioner of Corrections and other high-ranking state officials (some represented by their official designees). Its findings and recommendations, outlined in a report released last month, were unanimous.
The Commission’s review of drug-arrest data for Newark “yielded no evidence that drug dealers are aware of school zones, much less that they deliberately undertake their criminal activity to evade exposure to the school zone law.”
Its review of all school zone convictions since 1987 (the year New Jersey enacted the law) found that less than two percent – two cases out of 90 — involved drug transactions that took place on school property. (One involved a student, the other someone arrested while riding a bicycle through a public park leased to a local school board.)
None of the 90 school zone cases involved the sale of drugs to a minor.
The commission was particularly alarmed to find that nearly every person convicted and imprisoned for drug-zone violations (96 percent) is either African-American or Hispanic. The group referred to this as the “urban effect,” by which the concentration of schools and parks in the cities it studied – Jersey City, Camden and Newark – effectively makes the cities “all-encompassing drug-free zones.”
The relatively high percentage of ethnic minorities in these cities subjects the state’s diverse urban population to higher penalties than those faced by people living in suburban or rural areas, where schools and parks are more spread out and the populations are generally wealthier and less ethnically diverse.
This effect also “greatly undermines the school zone law’s effectiveness in protecting children,” the Commission concluded, writing that “the enormous, unbroken swaths created by the overlapping zones have in fact diluted the special protection of schools that the law was specifically intended to facilitate.”
The New Jersey Commission did not recommend repeal of the zones, but called for a substantial reduction in their size: to 200 feet. Despite extensive research, Commission members could find no justification for the 1,000-foot size of the zones.
New Jersey’s school zone law, like Maine’s and those of at least 33 other states, is patterned after the federal drug-free school zone law passed by Congress and signed by then-President Ronald Reagan in 1984.
“[I]t is notable that the legislative history of the federal school zone statute is remarkably scant,” the Commission wrote. “[D]espite considerable effort, the Commission was unable to ascertain why 1,000 feet was selected as the appropriate demarcation of the protective zone. No empirical data was cited by Congress, and the Commission has found no related evidence or research relied upon by Congress to inform its legislative determination.”
The commissioners also cite the findings of a 2001 report on drug zones in Massachusetts, which analyzed 443 incidents in New Bedford, Fall River, and Springfield. The principal author of that report was William Brownsberger, a lecturer at Harvard Medical School and former assistant state Attorney General who spent a decade studying Massachusetts’ drug laws.
The commissioners in New Jersey note four conclusions in the Brownsberger report that echo their own findings.
• “The school zone boundary distance of 1,000 feet was selected with no empirical basis to indicate how it would actually operate in older, larger cities.”
• “Despite the law, drug dealing was as prevalent inside school zones as it was outside of them.”
• “A statistically insignificant number of drug transactions involved the sale of drugs to minors.”
• “The intersecting zones made it impossible for drug dealers and children to distinguish the school zones from the rest of the city.”
Like the members of the New Jersey Commission, Brownsberger called for a major reduction in the size of the zones (to 100-to-250 feet around a school), but did not advocate for their repeal.
In a Jan. 12 editorial inspired by the New Jersey report, The New York Timesalso called for a major reduction in the zones, and noted their discriminatory effect.
“Offenders who live in cities, where populations are dense and the schools numerous, tend to fall under the drug-free-zone laws, not because they peddle drugs to minors, but because they live near schools,” the Times editorial said. “Offenders who live in suburban and rural areas, where drug abuse is just as common but where schools are more spread out, tend to fall outside the law, so they receive lighter sentences.”
The Bollard asked Maine lawmakers and law enforcement officials if they had any data or studies showing that our state’s 1,000-foot zones are effective in deterring drug crimes.
MDEA Director McKinney: “I haven’t come across any. I’ve never seen a study that approached it from a scientific [perspective], where it’s: Here’s before, and here’s after.”
South Portland Police Chief Googins: “No, I can’t cite any specific reports or studies in that regard.”
Westbrook Police Chief McCarthy: “I haven’t seen any studies… The information we got was intuitive, and more of an anecdotal [nature].”
Portland City Councilor Leeman: “I’m not aware of any, but I’m sure there must be something around somewhere.”
Lt. Tolan of the Falmouth Police Department: Could cite no data or studies. Said, “I would say probably, in general, they are [effective], but if a person wants to sell drugs, I’m not so sure they’re overly concerned about it.”
Cumberland County Sheriff Mark Dion: Had seen no studies or data. Said, “If someone is going to sell drugs, I don’t think he’s going to take a tape measure out.”
Kim Johnson, Director of the Maine Office of Substance Abuse: “No one’s ever said to me that [a school zone] was a deterrent.”
State Sen. Paul Davis, a Republican from Sangerville who co-sponsored Hotham’s bill, did not respond to a request for comment.
Maine Public Safety Commissioner Michael Cantara, a supporter of the zones, also did not return calls seeking comment.
In a Jan. 7 article in the Portland Press Herald, reporter David Hench did not document the existence of any data or studies, but wrote, “Cantara believes the rarity of drug crimes within 1,000 feet of a school compared with the number of drug crimes overall suggests that the philosophy works – that many people involved in drug activity intentionally avoid school areas.”
A key factor undermining the theory that “safe zones” deter drug crimes is the fact that most street-level drug dealers are themselves addicted to hard drugs (cocaine, heroin, OxyContin, methamphetamine, etc.), and are selling the drugs to support their own habit.
“In Maine, almost all dealers are addicts,” said Johnson, of the state’s Office of Substance Abuse. “I don’t know that [the existence of safe zones] changes addicts’ behavior,” she said. “If you’re addicted, you have one drive, and that drive overrides everything.”
Portland City Councilor Jim Cloutier, an attorney whose firm represents defendants charged in drug cases, noted that Cumberland County now has special “drug courts” — where some offenders can receive treatment in lieu of incarceration — partly because “there is a recognition that for the addicted person, the possibility of jail doesn’t mean that much. What really is important sometimes is what’s going to happen in the next two hours.”
“Most of the people in most of the cases I had contact with, they had no earthly idea [the school zones] existed,” Cloutier continued. “It doesn’t seem like it initially was well enough known for it to drive them to a different place.
“Then again,” he added, “we’re not really that interested in driving people to a different place, as opposed to designing ways to get past the conduct altogether.”
Among the lawmakers, lawyers and law enforcement officials interviewed for this article, there was broad agreement that most street-level dealers are also addicts. What varied was the degree of compassion these sources expressed for drug addicts facing extended prison terms.
“If an addict ends up spending five more years [in prison] because they exercised poor judgment, then so be it,” said Rep. Hotham. “We need to send a message: You don’t mess with our kids.”
“The bottom line is: Drug treatment can cure drug abuse,” said Zachary Heiden, an attorney with the Maine Civil Liberties Union (MCLU). “Locking people up for longer and longer prison sentences only leads to broken families and enormous taxpayer expense.”
“The thought of trying to put people behind bars for longer and longer periods of time doesn’t help anybody,” said State Senator Ethan Strimling, Democrat of Portland. “Most people come out of prison worse than they came in.”
Strimling has led recent efforts by the Legislature to study ways to reduce the swelling populations of Maine’s overcrowded prisons and jails. One of the factors stressing Maine’s corrections systems, and state and county budgets, is the incarceration of non-violent offenders, particularly those convicted of drug crimes. “That’s one of the things the Drug War has done,” Strimling said.
In 2003, the MCLU, in partnership with the state Department of Corrections, conducted the first survey ever undertaken to study the availability of health care – including drug treatment – in Maine’s prison system. As the Portland Press Herald reported in January of 2004, “60 percent of the state’s prisoners have substance abuse problems but have limited access to treatment.”
Denise Lord, the Associate Commissioner for Legislative and Program Services at the State Department of Corrections, did not respond to a request for comment.
Johnson said state corrections officials have made some real progress providing substance abuse treatment to inmates, but those gains are undermined by overcrowding.
For example, Johnson said the treatment facility for women incarcerated at the Maine Correctional Center in Windham “is excellent. That’s the only place we send women now.
“Unfortunately,” she added, “it’s overfull…. It’s been overflowing almost since it opened. There are women who aren’t getting the services they need there, so they’re in other units that aren’t the treatment unit.”
“I’m not confident there are enough [substance abuse] programs,” said Rep. Plummer. “It’s always a balancing act between finding the money to offer the programs and people serving their time.”
Prison overcrowding “is always a concern anytime we take up laws that increase the amount of incarceration,” Plummer continued. “But on the other hand, what’s the alternative? Do we want drug dealers to be able to deal freely and not worry about being sent away? We need to err on the side of: This is a serious crime; there will be a serious penalty attached.”
Asked if incarceration is the solution for addicted dealers, Councilor Gorham said, “That’s a really good question. The answer probably is no. That’s always been a problem when dealing with these things.
“Treatment is the best answer and the best solution,” added Gorham, who is also a county bail commissioner. “Unfortunately, we lock ‘em up…. That’s not the way to deal with it in all cases. Some of these poor bastards really do have a real problem. For others, it’s just money motivated.”
Councilor Carr, a licensed doctor of osteopathic medicine employed at UnumProvident, agrees that, “Medically, we should not throw someone addicted in jail without addressing withdraw or treatment.”
Asked if she was confident Maine’s prison system offers adequate treatment, Dr. Carr said, “That’s a big question. That’s a very important point we have to address before we assume [it is adequate]…. It’s important that addicted dealers be treated before doing time for their crime, or [while] doing time.”
When pressed to explain the practical effect the expanded “safe zones” will have, many lawmakers and law enforcement officials say the “message” the zones send to drug dealers is equally or more important than longer prison sentences.
Creating the zones is a way of “letting not only young people, but the public at large know the use and sale of drugs in those areas is all the more serious given the fact that young people’s brains are still developing,” Public Safety Commissioner Cantara told the Press Herald.
“I’m not sure that this is about deterrence,” said Rep. Hotham. “It’s more about the message…. It’s like the old saying: ‘Don’t do the crime if you’re not prepared to do the time.'”
Penalties for drug crimes are already enhanced if the crime involves the sale or furnishing of illegal drugs to a minor.
MDEA Director McKinney said the penalty for selling drugs to a minor inside a “safe zone” does not bump the punishment up two levels. But most other law enforcement officials and lawmakers interviewed were unclear on that point.
Asked about that scenario, Rep. Plummer said, “I don’t know if it’s one crime, or if you could be charged twice. It wouldn’t bother me to have both of [the penalty enhancements] there.”
Rep. Hotham, the law’s sponsor, also drew a blank. “I’m not clear on that,” he said.
Cumberland County District Attorney Stephanie Anderson could not be reached for an interview.
However, in a voice mail message, Anderson said she doesn’t expect the zones will lead to more drug arrests. “We think that we’ll probably still get the same number of cases, we’ll just have the discretion to seek a higher sentence when we feel the situation warrants it.
“The safe zones are designed to shield or protect youth from exposure to the dangers of drug trafficking, including observing transactions, exposure to violence, contact with discarded drug paraphernalia, etcetera,” Anderson said.
The Republican District Attorney also confirmed that the new law “applies to the distribution of drugs, not simple possession.”
Many sources interviewed for this article were likewise unclear on that key point. For example, even after discussing the law with Chief Burton and police attorney Beth Poliquin — and voting in favor of the zones at the committee meeting he chaired — Councilor Gorham said he did not know whether the new zones applied to drug possession.
Indeed, substantive debate over the wisdom of exponentially expanding drug-free zones seems to be just beginning. It’s apparent that many police officials and lawmakers still aren’t clear on the specifics of the legislation – which is not surprising, given that only 13 of the 186 members of the Legislature actually voted on the measure.
“I think we’ve got to have a broad conversation about it,” said Councilor Cloutier. “We put a lot of people in jail in Portland, Maine. I think it’s important for us to understand where this all fits in.”
“I have a bad attitude about symbolic or publicity related enactments, and I wouldn’t support one,” the at-large councilor added. “Frankly, I would have expected the [City Council’s] Public Safety Committee to review this information. This requires some policy research, policy evaluation.”
Sheriff Dion said his staff has already begun to evaluate the potential impact of the zones in an effort to determine not only where, but whom, they would cover. With the entire county to survey, that’s a big job, and it’s not complete — “it’s a pretty long list,” he said – but some things are already clear.
“In my rural area, this is not going to be really helpful,” said the sheriff.
From the data collected so far, Dion also concluded: “There is definitely an impact in terms of the economic profile of people” potentially affected by the law.
The sheriff’s countywide perspective on the zones gives him a unique view of the potentially discriminatory effect of the new law.
If one only considers the city of Portland, it’s difficult to say one neighborhood is more affected by the zones than another. Based on the extensive list Lt. Ward compiled, several hundred thousand square feet of the city would be covered by the zones, much of it overlapping, leaving small, oddly shaped pockets outside the law’s reach. No single neighborhood would be unaffected.
But when one compares Portland – with its dense concentration of parks, playgrounds and schools — to Cape Elizabeth, Scarborough or Yarmouth, where such facilities are more spread out, the difference between the city and these towns is more apparent. The contrast is even more striking between Portland and sprawling rural areas of the county, like Gray or Sebago.
A further examination of demographic data highlights the racial and economic disparity between people covered by the zones within Cumberland County.
Again, most of Portland would be covered by the zones, but a relatively small area of Cape Elizabeth would be covered. According to U.S. Census Bureau data for 2000, just over 91 percent of Portland’s population is white, compared to 98 percent of Cape Elizabeth’s. Median household income in Maine’s largest city was $35,650; in Cape Elizabeth, it was $72,359.
“Minority populations are constantly targeted for unfair treatment under American anti-drug laws,” said Heiden, of the MCLU.
Heiden said it’s too soon to say whether the MCLU will challenge the new law. “We’ll have to see how it’s implemented,” he said. “But we certainly think it’s misguided and an abuse of the criminal justice system.”
Dion, a Democrat currently finishing studies for a law degree, also expressed concern about the drug-zone law’s uneven application.
“Part of playing fair is making sure that sentencing is fair,” he said. “We’re the good guys — our rules are supposed to make sense.”