In Commonwealth v. Peterson, Massachusetts Supreme Judicial Court Brings (a Little) Reality to Bear on Statute Criminalizing Drug Possession in “School Zones”

Like that of many states, Massachusetts law provides for enhanced criminal penalties for specified drug offenses committed in close proximity to parks or schools. Defendants who commit such offenses in so-called “school zones,” which the statute defines as any location within 300 feet of a school of any kind, including any public or private accredited preschool or Head Start facility, or a “park zone,” defined as any location within 100 feet of a public park or playground, at any time of day except between the hours of midnight and 5 a.m., are subject to a mandatory two year sentence, on top of any punishment imposed for the underlying crime. The statute is explicitly clear that “lack of knowledge of school boundaries” is not a defense; a person who is found to have committed a drug offense within the stated distance from a school is subject to the enhanced penalty regardless of whether they knew of the school’s location or even of whether the school was easily recognizable as such (an issue with some preschools and Head Start facilities, which are often located inside larger buildings primarily devoted to other purposes.) As draconian as this law remains, it is actually an improvement on the version of the law in place until 2012, under which “school zones” included any location within 1,000 feet of a school, regardless of the time of day.

In its decision in Commonwealth v. Peterson, issued on January 3, 2017, the Supreme Judicial Court (“SJC”) set a limit on the statute’s application for the first time. In Peterson, the defendant was a passenger in a car with three other people. When the car stopped at a traffic light at an intersection near a public park, the police officers in the car behind it determined that its inspection sticker had expired. They pulled the car over shortly afterward, at a location that was no longer within one hundred feet of the park. The ultimate results of the stop were the discovery of drugs and a semi-automatic weapon, and the arrest of the defendant, who was charged with a number of crimes including a violation of the school zone statute.

The SJC held that the Massachusetts legislature could not possibly “have intended the school zone statute to apply to someone like the defendant, who, albeit in possession of drugs with the intent to distribute, does nothing more than simply travel as a passenger in a motor vehicle on a public roadway past a school, park, or playground.” It rejected the “literal application” that prosecutors sought to apply as unreasonable, noting that “[u]nder the Commonwealth’s reading, for example, a drug offender traveling on a Massachusetts highway, who sped past a roadside public park at sixty-five miles per hour for a matter of seconds, would be subjected to the severe statutory penalty for a park zone violation.”

The circumstances that led to a school zone charge in Peterson would not surprise most experienced defense attorneys. In my experience and as reflected in a study of the old version of the school zone law, the vast bulk of defendants charged with school zone violations are not, in fact, dealing drugs to or around children, and many are not dealing drugs within the school zones at all; they are stopped by police while traveling through a school zone, they reside (and store drugs) technically within a school zone, or they engage in drug transactions with other adults while ignorant that they are within a school zone. In short, the statute imposes a significant additional penalty on defendants who are engaging in the same conduct, with the same intent, as defendants not subject to a two-year additional penalty. While many of the defendants who are initially charged with school zone violations ultimately see that charge dropped as part of a plea deal, the mere presence of the charge in a complaint is a powerful and coercive incentive for defendants to accept plea deals rather than going to trial and risking imposition of the two-year mandatory sentence.

While the SJC got it right in Peterson, it made every effort to emphasize, within the opinion, that its holding was limited to the specific facts presented in the case. It specified that its prior cases, in which it upheld the statute’s application where a defendant purchased drugs at an address within a school zone but did not intend to distribute them within that zone, and where drugs were sold from an apartment within the statutory zone, remain in effect. It also took pains to emphasize that it was not overturning the decision of the Massachusetts Appeals Court in Commonwealth v. Labitue, in which the court found that the sentencing enhancement was appropriately applied where the defendant had purchased drugs outside of a school zone, then was stopped by police while driving through a school zone. The defendant there argued that the address of the drug deal, not the address of the stop, should determine whether the statute applied, because otherwise “the police could increase a defendant’s criminal exposure by delaying his arrest until he drove into a school zone.” The court in Labitue rejected that argument. In short, Peterson likely does not address the serious problem posed by allowing the police to manufacture school zone violations by simply waiting for defendants to drive into school zones before pulling them over. But it does offer hope that the courts may begin to scrutinize whether school zone convictions are warranted based on the individual facts and circumstances of each case.