Law Court Points Out Folly of Within-1,000’-Of-A-School Law.

Posted by Edmund R. Folsom, Esq., March 15, 2019.

In State v. Brown, 2019 ME 41, decided March 13, 2019, David T. Brown appealed his 4 counts of conviction for aggravated trafficking in scheduled drugs, Class A.   Brown was convicted of dealing crack cocaine from a second floor apartment in Lewiston.  Given the amount of cocaine base involved, the crime would have been Class B, carrying a maximum punishment of 10 years in prison, if not for the apartment’s proximity to the James B. Longley elementary school, located on a nearby street.   Trafficking in cocaine base becomes aggravated trafficking in cocaine base if, “[a]t the time of the offense, the person is…within 1,000 feet of the real property comprising a private or public elementary or secondary school.”  At trial, a witness for the State testified that she bought cocaine base from Brown on three occasions inside his apartment, but her testimony was not specific about where inside the apartment the transactions took place.  After the witness made her three controlled buys, police secured a search warrant for the apartment.  They located 27 grams of cocaine base in Brown’s bedroom.  This gave rise to the fourth count of aggravated trafficking, on a theory that he possessed the drug with the intent to sell it while he was located within 1000’ of the school.

To establish the aggravating factor that Brown trafficked within 1,000’ of the James B. Longley School, a DEA agent used a measuring wheel to measure from the front entrance of Brown’s apartment building, 958.9’ to a point 4 or 5’ inside the school’s property line.  Because the conduct occurred in Brown’s second floor apartment, the agent measured the distance from the second floor to the ground, which was 12.4’, and the distance from that point to the point at the front entrance where he’d begun measuring the distance to the school.  He also measured from the apartment’s living room to the building’s exterior wall, which was 16.9’.  Adding all these measurements together, the total measured distance from the school to Brown’s living room was 996.2’.

Because the agent used a measuring point that was 4 or 5’ over the school’s property line, and because of other quirks in the agent’s measurement methods, the Law Court concluded that the jury would have been able to rationally conclude the distance from the Brown’s living room doorway to the school’s property line was 991.2’.  On this basis, the Court decided there was evidence sufficient to find Brown guilty of aggravated trafficking only if the jury could have rationally concluded Brown committed the trafficking offenses within a zone inside the apartment not more than an additional 8.8’ away from the school.  The evidence presented at trial was simply not sufficient to allow the jury to draw that conclusion beyond a reasonable doubt.  The Law Court therefore reversed the convictions of aggravated trafficking, Class A, and remanded the case for re-sentencing on the four counts of trafficking, Class B.   This reduced the range of punishment from a maximum of 30 years and a minimum mandatory 4 years in prison, to a maximum of 10 years with no mandatory minimum prison sentence.  The Court also made it plain that measurement for the 1,000’ aggravating factor is a straight-line measurement, from the location where the person engaged in the conduct to the property line of the school involved. The measurement must factor in elevation, to account for conduct that occurs above or below ground level.

In a concurrence, Chief Justice Saufley, joined by Associate Justice Mead, paid respect to the Legislature’s “laudable” intentions in enacting a statute, “designed to keep school children from obtaining drugs, witnessing the sale of drugs, or being exposed to the violence that could arise during a drug transaction.”  But the Court criticized the statute as a “blunt instrument” that “misses its mark,” and creates a raft of unintended consequences.  For instance, the concurrence points out, the statute disproportionately impacts defendants who conduct their activities in densely populated areas, which potentially implicates racial and economic class concerns.  Yes, the statute passes constitutional muster because of the deference afforded legislative bodies to create remedies for the problems they identify, but just because it manages to clear that low bar does not mean it is wise policy.   Chief Justice Saufley states, “In  short,  although  the  noble  goal  of  the  statute  is  to  protect schoolchildren from the ills of drug trafficking,  the statute may disproportionately expose people living in diverse, urban areas to aggravated convictions and  harsher  sentences  for  conduct  that  may  have  no  effect whatsoever on the schoolchildren the statute seeks to protect.”  She suggests adjustments, to more narrowly tailor the aggravating factor to circumstances in which children are actually nearby or somehow in fact placed at risk by the conduct.

This statute really is overkill, overly broad and overly heavy-handed.  It’s a carryover from days when mandatory minimum sentences and zero tolerance policies were all the rage.  It gets the job done like a sledge hammer on finish work.   And don’t think it doesn’t get manipulated to inflict maximum harm.  I knew of a guy who got charged with aggravated trafficking because he happened to drive his car within several hundred feet of a parochial school located on another street.  He was just passing through on his way to his destination.  At the time, he had more than 20 pounds of marijuana in the trunk of his car.  That’s possession with intent to sell more than 20 pounds – trafficking, Class B — and it took place, albeit fleetingly, within 1000’ of an elementary school – that’s aggravated trafficking, Class A, punishable by at least 4 years in prison, with a maximum of 30.   The cops who tailed him waited till he’d driven within 1,000’ of the school before they stopped him (for failing to yield to a pedestrian in a crosswalk).  I know, he should have picked a different route.  But what did any of it have to do with school children?  Someone could make a 1 gram sale outside a bar, at midnight, 999.5’ from a school located a couple blocks away, while all the children are home, asleep, and that would be aggravated trafficking in schedule W, carrying a mandatory minimum 4 years in prison.  It’s just stupid.  Check out Brown and pore over its detailed discussion of the measurements.  See for yourself.   It’s absurd enough for a Monty Python skit.