Tennessee’s Drug-free Zone Law: A Comparative Analysis
By: Devon C. Muse
Brief Introduction
This report uses statistical research and comparative analysis to
analyze the current state of drug-free zone legislation in the United States.
This research provides insight to various factors that affect the intended
value and efficiency of drug-free zone laws. Through this information, an
educated analysis of jurisdictions not yet researched becomes feasible. By
evaluating existing research and reforms of drug-free zone regulations in
other states, this report demonstrates that Tennessee is likely suffering from
unintended effects of its drug-free zone law.
Substance Abuse and Youth
The illicit use of controlled substances is a longstanding and prevalent
problem faced by the United States.1 The 2013 National Survey on Drug Use
and Health (“NSDUH”)2 found that approximately 24.6 million Americans, or
1.
SUBSTANCE ABUSE AND MENTAL HEALTH SERVS. ADMIN., RISK AND
PROTECTIVE FACTORS AND INITIATION OF SUBSTANCE USE: RESULTS FROM THE 2014
NATIONAL SURVEY ON DRUG USE AND HEALTH 2 (2015) [hereinafter SAMSHA1]
http://www.samhsa.gov/data/sites/default/files/NSDUH-DR-FRR4-2014%20(1)/NSDUH-DRFRR4-2014.pdf (“Substance use and abuse are major public health problems in the United
States.”).
2.
SUBSTANCE ABUSE AND MENTAL HEALTH SERVS. ADMIN.,, RESULTS FROM THE
2013 NATIONAL SURVEY ON DRUG USE AND HEALTH: SUMMARY OF NATIONAL FINDINGS 9
(2014)
[hereinafter
SAMSHA2]
http://www.samhsa.gov/data/sites/default/files/NSDUHresultsPDFWHTML2013/Web/NSD
UHresults2013.pdf (“NSDUH is a primary source of statistical information on the use of
9.4 percent of the population aged 12 or older, admitted to using an illicit
drug during the prior month.3 Despite its efforts, society has made marginal,
if any, gains in curbing illicit drug use by the general population.4
Unfortunately, this problem extends into the nation’s youth.5 In 2013, “8.8
percent of youths aged 12 to 17 were current illicit drug users.”6
Given the vulnerabilities of youth7 and the inherent dangers of illicit
substances, society has taken an interest in protecting adolescents from the
harmful effects caused by illicit substance use. Whether youth engage in
substance abuse often relates to their exposure to factors associated with
illegal drugs, alcohol, and tobacco by the U.S. civilian, noninstitutionalized population aged
12 or older. Conducted by the Federal Government since 1971, the survey collects data
through face-to-face interviews with a representative sample of the population. The survey
is sponsored by SAMHSA, the U.S. Department of Health and Human Services, and is
planned and managed by SAMHSA's Center for Behavioral Health Statistics and Quality.
The survey’s data is collected and analyzed under contract with RTI International.”).
3.
Id. at 15.
4.
Id. at 1 (“The rate of current illicit drug use among persons aged 12 or older
in 2013 (9.4 percent) was similar to the rates in 2010 (8.9 percent) and 2012 (9.2 percent),
but it was higher than the rates in 2002 to 2009 and in 2011 (ranging from 7.9 to 8.7
percent).”).
5.
SAMSHA2, supra note 2, at 21.
6.
Id.
7.
Stephen J. Ceci & Richard D. Friedman, The Suggestibility of Children:
Scientific Research and Legal Implications, 86 CORNELL L. REV. 33, 71 (2000)
http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2827&context=clr [71, 2000]
(noting the dominant view in scholarship that children are highly suggestible and
vulnerable to suggestive techniques); see Suggestibility of Children’s Memory,
http://www.arts.uwaterloo.ca/~doneill/cogsci600/Kenyon.pdf [434] (noting the “considerable
body of research” indicates numerous suggestive techniques that can influence the
decisions of young children).
increasing the likelihood of substance abuse (“risk factors”) and factors
known with decreasing the likelihood of substance use (“protective factors”).8
Although the “[r]isk and protective factors include variables that operate at
different stages of development and reflect different domains of influence,
[i]nterventions to prevent substance use [by youth] generally are designed to
ameliorate the influence of risk factors and enhance the effectiveness of
protective factors.”9
One risk factor confronting youth is the perceived availability of an
illicit substance.10 Statistics show that as the perceived availability of an
illicit substance goes up, so does the likelihood that youth used the substance
in the past month.11
When this dynamic is compounded by an actual
availability of the controlled substance in the youth’s locality, serious
problems and concerns arise regarding use of illicit substances by the
adolescent population.12
8.
SAMSHA1, supra note 1, at 1.
9.
SAMSHA1, supra note 1, at 1; SAMSHA2, supra note 2, at 71.
10.
SAMSHA2, supra note 2, at 76; see also SAMSHA1, supra note 1; id. at 12
(“Many studies have demonstrated that the availability of drugs (i.e., ease of obtaining
drugs) is associated with drug initiation and use.”).
11.
See SAMSHA2, supra note 2, at 75–76; id. at 76 (noting that approximately
“one in eight youths aged 12 to 17 [] indicated that they had been approached by someone
selling drugs in the past month.”).
12.
See SAMSHA2, supra note 2, at 6 (“In 2013, 39.0 percent of youths aged 12
to 17 perceived great risk in having five or more drinks once or twice a week. Similarly,
To address these problems, states have implemented drug-free zone
laws (“DFZLs”). Recognizing governmental systems, education centers, and
aspects of the community as “domains of influence” from which to address
illicit drug use by youth,13 DFZLs reflect an effort to reduce the use of
controlled substances by youth and reduce the harms illicit drug activity
poses to such individuals.14 More specifically, this effort has aimed to reduce
the availability (perceived or actual) of such substances and foster protected
environments for youth populations.15
Drug-free Zone Laws
39.5 percent of youths perceived great risk in smoking marijuana once or twice a week. . . .
About half (48.6 percent) of youths aged 12 to 17 reported in 2013 that it would be "fairly
easy" or "very easy" for them to obtain marijuana if they wanted some. One in eleven
reported it would be easy to get heroin (9.1 percent), 11.3 percent indicated that LSD would
be easily available, and 14.4 percent reported easy availability for cocaine. In comparison
with the rates in 2002, the 2013 rates represent declines in perceived availability for all
four of these drugs. About one in eight youths aged 12 to 17 (12.4 percent) indicated that
they had been approached by someone selling drugs in the past month, which was similar
to the rate in 2012 (13.2 percent).”).
13.
SAMSHA1, supra note 1; SAMSHA2, supra note 2, at 71.
14.
See THE SENTENCING PROJECT, DRUG-FREE ZONE LAWS: AN OVERVIEW OF
STATE
POLICIES
1
(2013)
http://sentencingproject.org/doc/publications/sen_DrugFree%20Zone%20Laws.pdf; see also JUSTICE POLICY INSTITUTE, DISPARITY BY DESIGN: HOW
DRUG-FREE ZONE LAWS IMPACT RACIAL DISPARITY—AND FAIL TO PROTECT YOUTH 3 (2006)
http://www.drugpolicy.org/sites/default/files/SchoolZonesReport06.pdf
See THE SENTENCING PROJECT, supra note 14; see also JUSTICE POLICY
INSTITUTE, supra note 14.
15.
DFZLs are based on the premise that drug trafficking in certain
locations creates risk factors that pose danger to children.16 To limit youth
exposure to illegal drug activity, lawmakers established protected “buffer
zones” around places where children most likely frequented or were
present.17 In an effort to deter unwanted drug activity, DFZL violators are
subjected to “substantially higher penalties than others who engaged in the
same conduct outside the zone.”18 Proscribed locations under these laws have
included schools and school bus stops, childcare centers, parks, recreation
centers, public housing, and the like.19 For example, a law imposing drugfree zones might forbid conspiring to or actually possessing, selling, or
manufacturing a controlled substance within a certain distance of proscribed
locales.
The first rudimentary DFZL surfaced as part of the Comprehensive
Drug Abuse, Prevention and Control Act of 1970,20 twelve years before
President Ronald Reagan officially used the term “War on Drugs.”21 By the
16.
THE SENTENCING PROJECT, supra note 14.
17.
JUSTICE POLICY INSTITUTE, supra note 14.
18.
THE SENTENCING PROJECT, supra note 14.
19.
See id. passim.
20.
JUSTICE POLICY INSTITUTE, supra note 14, at 5.
21.
THE SENTENCING PROJECT, supra note 14.
year 2000, the National Alliance for Model State Drug Laws (“NAMSDL”) put
forth a draft analysis finding that all fifty states and the District of Columbia
had adopted DFZLs.22
The laws vary among jurisdictions, with key
distinctions regarding the offenses included, locations covered, zone size(s)
implemented, and penalties imposed under the regulation.23
The implementation of DFZLs has caused unintended effects, creating
concern for policymakers.
Research on DFZLs across the nation
demonstrates that the size, population density,24 and demographics25 of a
particular drug-free zone, can negate any deterrent value of the law.26
Specifically, an overly large zone, particularly in a population-dense area, can
fail to drive drug activity away from proscribed locales27 and cause alarming
22.
See also id. at 1–2; JUSTICE POLICY INSTITUTE, supra note 14, at 3, 5.
23.
THE SENTENCING PROJECT, supra note 14.
JUSTICE POLICY INSTITUTE, supra note 14, at 26; see id. at 36; see also THE
SENTENCING PROJECT, supra note 14.
24.
25.
JUSTICE POLICY INSTITUTE, supra note 14, at 26 (“Geographic data presented
in [New Jersey’s] commission’s report support the argument that geography greatly affects
the likelihood that a drug arrest will result in a drug-free zone charge. Just 19 percent of
rural arrests take place in drug-free zones compared to 33 percent of arrests in rural
centers, 32 percent in the suburbs, 63 percent of arrests in urban suburbs, and 82 percent
of arrests in urban centers.”); see also id. at 30, 36.
THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY
INSTITUTE, supra note 14 passim.
26.
See THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY
INSTITUTE, supra note 14 passim.
27.
levels of disproportional and disparate impacts on youth offenders28 and adult
offenders.29
This is so despite studies consistently showing that blacks,
whites, and Hispanics use illicit substances at similar rates.30
These findings have shaken the confidence of policymakers in current
DFZLs because these laws have a direct relation to ensuring the safety and
well-being of youth and their surrounding communities. This report focuses
on zone sizes employed under drug-free zone legislation and considers the
unintended policy implications caused by such legislation as demonstrated by
recent statistical data. Through comparative analysis, this report indicates
cause for concern regarding the effectiveness and pragmatic consequences of
Tennessee’s DFZL.
New Jersey
New Jersey was one of the first states to enact its own version of the
federal DFZL, so appropriately, it was the first to seriously scrutinize the
effects of the law.31
The original New Jersey law prohibited distributing,
28.
JUSTICE POLICY INSTITUTE, supra note 14, at 21 (noting substantial disparate
impacts in Cook County, Illinois, on minority youth under the state DFZL).
See THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY
INSTITUTE, supra note 14 passim.
29.
30.
JUSTICE POLICY INSTITUTE, supra note 14, at 28 (“Reports from the federal
Substance Abuse and Mental Health Services Agency on the prevalence of illicit drug use
consistently show that blacks, whites, and Hispanics use at similar rates.”).
31.
JUSTICE POLICY INSTITUTE, supra note 14 (noting that New Jersey first
enacted a DFZL in 1987).
dispensing, or possessing with intent to distribute drugs within a 1,000-foot
zone around schools.32 Approximately a decade later New Jersey lawmakers
added a 500-foot zone for drug sales around parks, libraries, museums, and
public housing complexes.33
In 2004, the New Jersey state legislature established the New Jersey
Commission to Review Criminal Sentencing to conduct an investigation on
the state’s DFZL and its impacts.34 After a comprehensive analysis of the
DFZL, the Commission found that the law had no deterrent effect: it failed
entirely to drive drug activity away from schools. Additionally, the DFZL
was a major contributor to alarming levels of racial disparity in
incarceration.35 The Commission found that the intended policy purpose of
driving drug activity away from youth and the locales they frequent was
undermined by the fact that many densely populated or developed urban
areas overlapped under the DFZL, which effectively turned entire
32.
THE SENTENCING PROJECT, supra note 14, at 5 (noting that “school” in the
statute incorporates daycare centers, vocational training centers, and other educational
facilities); see also JUSTICE POLICY INSTITUTE, supra note 14, at 22.
33.
THE SENTENCING PROJECT, supra note 14, at 5.
34.
JUSTICE POLICY INSTITUTE, supra note 14, at 3, 25; THE SENTENCING
PROJECT, supra note 14, at 5.
35.
JUSTICE POLICY INSTITUTE, supra note 14, at 3–4.
communities into prohibited zones.36 According to Judge Barnett Hoffman,
chair of the Commission and a presiding county court judge of the Middlesex
County court, “Giant unbroken drug-free zones . . . actually dilute the special
protection the laws are supposed to offer” because such overlapping zones
create “a net so large that we pull in every fish whether it’s the type of fish
we’re looking for or not.”37 The distinction the New Jersey law aspired to
create between drug-free zones and other areas was negated, resulting in no
measurable deterrent effect.
Additionally, New Jersey’s DFZL created an unwarranted racial
disparity because it blanketed densely populated minority neighborhoods
resulting in a “devastating impact on minority defendants.”38
The
Commission labeled this effect of population density on the likelihood of being
arrested and convicted under the state’s DFZL as the “urban effect.”39 The
36.
Id. at 4 (“[T]he Commission determined that the laws had failed entirely to
accomplish their primary objective of driving drug activity away from schools and
schoolchildren. The Commission found that the law had no measurable deterrent effect and
was not being used to sanction individuals that sell drugs to children.”).
37.
JUSTICE POLICY INSTITUTE, supra note 14, at 26.
38.
THE SENTENCING PROJECT, supra note 14, at 5–6 (“Nearly every defendant
(96%) convicted and incarcerated for a drug-free zone offense in New Jersey was either
black or Latino.”); JUSTICE POLICY INSTITUTE, supra note 14, at 14; id. at 26 (“According to
the commissioners, the problem stems primarily from the “urban effect” of the law’s current
zone configuration. They argue that the enormous racial disparity produced by the
schoolzone enhancement is a function of differing population density in communities where
the majority of whites and people of color live.”).
39.
JUSTICE POLICY INSTITUTE, supra note 14, at 28.
Commission also expressed a concern that the state’s DFZL was exacerbated
by disparate enforcement patterns.40
Upon its findings, the Commission
recommended, as one ameliorative measure, that the legislature shrink the
zone size from 1,000 feet to 200 feet.41 Although the commission’s bill stalled
in the legislature, New Jersey officially recognized some of the inherent
problems with the state’s DFZL when Governor Jon Corzine signed into law a
bill that eliminated mandatory prison sentences for school zone offenses and
enhanced judicial discretion in such cases.42
Massachusetts
Research conducted in Massachusetts also supports the notion that an
overly-large drug-free zone can negate the deterrent value of a DFZL and
result in disproportional impacts for urban, minority communities and
economically disadvantaged segments of the population.43
The General
Assembly of Massachusetts passed its first DFZL in 1989.44 In 2000, when
40.
Id. (“While the ‘urban effect’ . . . is a necessary explanation for the laws’
racially disparate impact, it is not a sufficient explanation. . . . Yet even after controlling
for population density, blacks are far more likely than whites to be arrested and convicted
for drug-free zone offenses. . . . This raises questions about whether the disparities built
into the drug-free zone laws are being exacerbated by disparate enforcement patterns.”)
41.
THE SENTENCING PROJECT, supra note 14, at 6.
42.
Id.
43.
JUSTICE POLICY INSTITUTE, supra note 14, at 4.
44.
THE SENTENCING PROJECT, supra note 14, at 5.
efforts to reform the law began, the state’s DFZL imposed a mandatory
minimum sentence for convictions of selling or distributing drugs within
1,000 feet of a school zone, day care, or Head Start Facility and 100-feet of a
park or playground.45
Research on the potential effects of the DFZL in Massachusetts was
conducted by multiple institutions, including Northeastern University.46 The
research done at Northeastern University, like other studies, suggests a
sharp disparity in the way DFZLs are
enforced.47
Research on
Massachusetts’ DFZL was also conducted at the Boston University School of
Public Health by William Brownsberger, a drug policy expert and former
Assistant Attorney General for Narcotics.48 Brownsberger’s findings speak to
how the size of the zones imposed under the state’s DFZL affects the law’s
intended purpose of deterring drug activity in places children are likely
present.49
45.
Id.; JUSTICE POLICY INSTITUTE, supra note 14, at 15.
46.
THE SENTENCING PROJECT, supra note 14, at 5; JUSTICE POLICY INSTITUTE,
supra note 14, at 15.
47.
JUSTICE POLICY INSTITUTE, supra note 14, at 16 (“Massachusetts sentencing
data indicate that 80 percent of defendants that received mandatory, enhanced sentences
under the drug-free zone statute are black or Hispanic, even though 45 percent of those
arrested for drug violations statewide are white.”)
48.
THE SENTENCING PROJECT, supra note 14, at 5; JUSTICE POLICY INSTITUTE,
supra note 14, at 15.
49.
JUSTICE POLICY INSTITUTE, supra note 14, at 15.
Brownsberger found that the Massachusetts’s DFZL, as promulgated
and enforced, had no deterrent value.50 His research evidenced that, because
the DFZL was drawn too broadly, any incentive to not sell drugs in the
vicinity of locations reasonably perceived to hold youths was negated.51
Moreover, his research demonstrated that the overly broad zones employed
under the state’s DFZL produced disparate impacts because the DFZL
“covered 29% of the three studied cities and 56% of high-poverty areas.”52 To
alleviate the unintentional and negative effects of the law and provide more
efficient means of furthering the policy of the state’s DFZL, Brownsberger
recommended Massachusetts drug-free zones be shrunk from 1,000 feet to
100–250 feet.53
These findings were bolstered in 2009 through a report issued by the
Prison Policy Initiative (“PPI”). PPI’s research, which focused on western
Massachusetts, found that “residents of urban areas were five times as likely
50.
Id.
51.
Id.
52.
THE SENTENCING PROJECT, supra note 14, at 5.
53.
THE SENTENCING PROJECT, supra note 14, at 5 (Brownsberger argues that
a special penalty to protect children is a good idea, but that the Massachusetts
law is drawn too broadly to have that effect. By blanketing large geographic
areas with drug-free zones, the law makes it virtually impossible for sellers to
avoid them. As Brownsberger puts it, “We’re not giving anyone any incentive not
to sell drugs near schools.” He recommends reducing the zone to between 100 to
250 feet.).
to live within a drug-free zone as residents of rural areas [and] that more
than half of black and Hispanic residents lived in drug-free zones while less
than a third of white residents” lived in such a zone.54 As a result of this
research, legislators on Massachusetts’s joint Judiciary Committee approved
a bill that would have shrunk the size of the zones and limited the hours of
their effectiveness, though the bill died on the floor of the general assembly.55
However, with the endorsement of Governor Deval Patrick, the General
Assembly subsequently enacted a law reducing the size of Massachusetts’s
DFZL zones from 1,000 feet to 300 feet and limiting the operation of the
zones from 5 a.m.–midnight.56
Indiana
Research on Indiana’s DFZL also demonstrates that the size of the
drug-free zones imposed by under law can render a law ineffective as a
deterrent and result in disparate treatment. Indiana’s DFZL, first adopted in
1987, increased the felony class of the underlying drug offense if it occurred
within 1,000 feet of school property, a public park, a public housing complex,
or a youth program center.57 In response to rising concerns, both locally and
54.
Id.
55.
Id.
56.
Id.
57.
Id. at 4.
nationally, DePauw University implemented a study regarding the impact
and effectiveness of the state law.58
studies on state DFZLs:
The findings were similar to other
the law’s effectiveness and deterrent value was
inhibited by the fact that the “drug-free zones blanketed large portions of the
inner city areas in Indianapolis,” and the law produced disproportionate and
disparate impacts on minorities—“more than 75% of defendants who had
their felony class raised under the drug-free zone statute were black.”59 This
research was presented to the Indiana Senate Committee on Corrections,
Criminal, and Civil Matters and the specially-convened Indiana Sentencing
Policy Study Committee.60 The findings were supplemented by disapproval of
the state’s current DFZL by the Indiana Supreme Court in 2012 where the
court signaled it would continue to reduce harsh sentences imposed under the
DFZL.61 In response to these concerns, the Indiana legislatures passed and
Governor Mike Pence signed into law, a bill reforming the state DFZL.62 The
bill reduced Indiana’s drug-free zones from 1,000 feet to 500 feet and
eliminated the zones around public housing complexes and youth program
58.
Id.
59.
See THE SENTENCING PROJECT, supra note 14, at 4.
60.
Id.
61.
Id.
62.
Id.
centers; it also required that a minor must be reasonably expected to be
present at the time of the underlying offense.63
Tennessee
Tennessee codified its DFZL in Tennessee Code Annotated § 39-17-432.
Upon promulgating the statute the General Assembly articulated a
governmental interest in providing “vulnerable persons [of the] state an
environment in which they can learn, play and enjoy themselves without the
distractions and dangers that are incident to the occurrence of illegal drug
activities.”64 The provision mandates “enhanced and mandatory minimum
sentences [of drug offenses] occurring in a drug-free zone . . . as a deterrent to
such unacceptable conduct.”65 Specifically, any individual who conspires to or
actually manufactures, delivers, sells, or possesses with the intent to
manufacture, sell, or possess drugs66 while “on the grounds or facilities of any
school or within one thousand feet (1,000) of [any proscribed property] is
subject to an enhanced, mandatory minimum sentence.67
63.
Id.
64.
TENN. CODE ANN. § 39-17-432(a) (2014).
65.
TENN. CODE ANN. § 39-17-432(a); see also THE SENTENCING PROJECT, supra
note 14, at 3 (noting that Tennessee Kansas, and Nebraska elevate the felony class of the
underlying drug offense when it is committed within a drug-free zone, thereby exposing the
defendant to harsher penalties).
66.
TENN. CODE ANN. § 39-17-417(a) (2014).
67.
TENN. CODE ANN. § 39-17-432(a), (b)(1).
The locations covered by the DFZL include “a public or private
elementary school, middle school, secondary school, preschool, child care
agency, or public library, recreational center, or park.”68 Any violation of
Tennessee Code Annotated § 39-17-417 occurring within this zone will cause
the offender to be punished one classification higher than otherwise would be
imposed.69
The violation also causes a blanket increase of fines for
offenders.70
If the offense occurs within 1,000 feet of a public or private
elementary school, middle school, or secondary school, Tennessee’s DZFL also
triggers increased incarceration.71
Tennessee’s DFZL is similar to the prior statutory scheme of
jurisdictions that investigated and revised their DFZLs.
Tennessee
employs
a
1,000-foot
buffer
zone.
This
For example,
is
similar
to
Massachusetts’s previous DFZL, which employed a 1,000-foot zone and a 100foot zone;72 Indiana’s previous DFZL, which imposed a 1,000-foot zone; 73 New
68.
Id.
69.
Id.
70.
See TENN. CODE ANN. § 39-17-432(b)(2), (3).
71.
See TENN. CODE ANN. § 39-17-432(b)(3) (“A person convicted of violating this
subsection (b), who is within the prohibited zone of a preschool, childcare center, public
library, recreational center or park shall not be subject to additional incarceration as a
result of this subsection (b) but shall be subject to the additional fines imposed by this
section.”).
72.
THE SENTENCING PROJECT, supra note 14, at 5.
Jersey’s former DFZL, which used a 1,000-foot zone and a 500-foot zone; and
Delaware, which previously imposed a 1,000-foot zone.74
Although other
states have recorded problems with their DFZL,75 detailed research and
analysis of the DFZLs in these four states show that 1,000-foot “buffer zones,”
particularly in the presence of certain demographics, are large enough to
negate the laws’ primary purpose of driving drug activity away from
proscribed locations. These findings have already caused other jurisdictions
to reduce their 1,000-foot drug-free zones.76
Moreover, these same
jurisdictions noted disproportional and disparate impacts throughout the
studied communities, which suggests similar concerns for Tennessee.
Additionally,
many
of
the
jurisdictions
studied,
such
as
in
Massachusetts and Indiana, involved DFZLs that proscribed localities
substantially similar to those covered by Tennessee’s DFZL. For example,
Massachusetts’s DFZL created drug-free zones around schools, day cares,
73.
Id. at 4.
74.
Id.
75.
Id. at 3–4 (noting and discussing Connecticut’s reform on its DFZL); id. at 3,
5 (noting and discussing Kentucky’s reform on its DFZL); id. at 6 (South Carolina modified
the triggers for penalty enhancements by requiring “that anyone arrested for a drug offense
in an enhancement zone must have knowledge that he or she was in a restricted area with
the intent of selling.”); JUSTICE POLICY INSTITUTE, supra note 14, at 21 (noting Illinois’s
reform of its treatment of its DFZL in relation to juveniles).
76.
See e.g., THE SENTENCING PROJECT, supra note 14, at 4 (noting Delaware’s
reduction in the zone size created by the state’s DFZL).
Head Start Facilities, and parks or playgrounds.
Indiana’s DFZL formed
drug-free zones around school property, public parks, youth program centers,
and public housing complexes. Similarly, New Jersey’s DFZL created “buffer
zones” around schools, parks, libraries, museums, and public housing
complexes.
Tennessee also proscribes many of the same offenses as the
jurisdictions studied, such as intent to manufacture or sell an illicit
substance.77
Comparative Demographics
According to data collected by the United States Census Bureau,
Tennessee seemingly contains jurisdictions with significantly similar
demographics to states that have discovered significant problems with their
DFZL. The jurisdictional data provided by the Bureau and compared here
considers categories such as population, age, sex, race, nationality, family
and living arrangements, income and poverty, and geography. The studies on
Massachusetts’s prior DFZL included data samples from Hampden County,78
Springfield City,79 New Bedford City,80 and Fall River, City.81
Hampden
77.
Compare, TENN. CODE ANN. § 39-17-432, with THE SENTENCING PROJECT,
supra note 14 passim, and JUSTICE POLICY INSTITUTE, supra note 14 passim.
78.
THE SENTENCING PROJECT, supra note 14, at 5.
79.
Id.; JUSTICE POLICY INSTITUTE, supra note 14, at 15.
THE SENTENCING PROJECT, supra note 14, at 5; JUSTICE POLICY
INSTITUTE, supra note 14, at 15.
80.
County, Massachusetts, is significantly similar to Knox County, Tennessee,
in
many
regards
including
population,
population
density,
and
demographics.82 Springfield City, Massachusetts, is significantly similar in
demographics to Chattanooga City, Tennessee;83
other demographical
similarities are seen between Fall River City, Massachusetts, and Johnson
City, Tennessee84 as well as New Bedford City, Massachusetts and Franklin
City, Tennessee.85 Significant demographical similarities to Tennessee are
also seen in other jurisdictional studies discussed.
For example, Indiana
81.
THE SENTENCING PROJECT, supra note 14, at 5; JUSTICE POLICY
INSTITUTE, supra note 14, at 15.
82.
See
UNITED
STATES
CENSUS
BUREAU,
tbl.
(2015)
http://www.census.gov/quickfacts/table/PST045214/25013,47093 (evidencing substantial
similarities between the two jurisdictions in population estimates; age and sex ratios; race
and nationality, minus Hispanics and Latinos; housing; families and living arrangements;
income and poverty; and geography).
83.
See
UNITED
STATES
CENSUS
BUREAU,
tbl.
(2015)
http://www.census.gov/quickfacts/table/PST045214/4714000,2567000 (displaying significant
similarities between the two jurisdictions in population estimates; age and sex ratios; race
and nationality, minus Hispanics and Latinos; housing; families and living arrangements;
income and poverty; and geography).
84.
See
UNITED
STATES
CENSUS
BUREAU,
tbl.
(2015)
http://www.census.gov/quickfacts/table/PST045214/2523000,4738320 (showing significant
similarities between the two jurisdictions in age and sex ratios, race and nationality, and
income and poverty and evidencing seemingly comparable demographics on population,
housing, families and living arrangements, and geography).
85.
See
UNITED
STATES
CENSUS
BUREAU,
tbl.
(2015)
http://www.census.gov/quickfacts/table/PST045214/2545000,4727740 (displaying significant
similarities between the two jurisdictions in age and sex ratios and evidencing seemingly
comparable demographics on population, race and nationality, housing, as well as families
and living arrangements).
reviewed its previous DFZL with sample data from Marion County, Indiana,
which is substantially similar to Shelby County, Tennessee.86
Tennessee Research
Direct research on Tennessee’s DFZL is limited in both numbers and
scope.
However, research done in a dissertation at the University of
Tennessee statistically analyzed an exhaustive two calendar year list of “drug
offenses eligible for penalty enhancement under [Tennessee’s DFZL].”87 The
research created an accurate model88 with the data and demonstrated that
“classification of race as ‘black’” is one of the five most statistically significant
factors to increase a suspect’s odds of being charged with enhanced penalties
under the state’s DFZL in Knoxville, Tennessee.89
86.
See
UNITED
STATES
CENSUS
BUREAU,
tbl.
(2015)
http://www.census.gov/quickfacts/table/PST045214/18097,47157 (evidencing substantial
similarities between the two jurisdictions in population estimates; race and nationality,
minus Hispanics and Latinos; housing; families and living arrangements; income and
poverty and demonstrating significant similarities in age and sex ratios as well as
geography).
87.
Jordan T. Smith, Dissertation, Equal Protection Under the Law? Examining
Tennessee’s Drug Free School Zone Act (TNDFSZA), University of Tennessee Honors
Thesis
Projects,
19
(2012)
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=2534&context=utk_chanhonoproj
(analyzing a total of 2,031 case list compiled by the City of Knoxville for cases dating from
January 2010 to December 2011).
88.
Id. at 30 (discussing how the model created predicts “whether or not a
[Tennessee] suspect is charged with enhanced penalties” under the States DFZL with
89.7% accuracy).
89.
Id. at 34–35 (finding that under the applied model, being “black” raises the
odds a suspect will be charged under Tennessee’s DFZL by a factor of roughly 6.5). But see
Although specific evaluations of or research on Tennessee’s DFZL is
limited, Tennessee’s legal community has expressed concern regarding the
effectiveness of the DFZL, especially given the size of the “buffer zones”
imposed under the law.
Tennessee attorney Vincent Wyatt voiced his
concern regarding the overly broad nature of the zones when he stated, “As
one can imagine, in Nashville and other cities[,] this 1,000 feet boundary line
can encompass almost an entire urban area.”90 Wyatt is not alone, Susan
Shipley, an attorney in Knoxville, Tennessee, expressed concern regarding
disproportional and disparate impacts of Tennessee’s DFZL when she stated,
"The disparity we're seeing [from Tennessee’s DFZL] is something the (U.S.)
Justice Department needs to look into.”91 These are just a few of the concerns
id. at 36–37 (noting that prior criminal history is an unaccounted variable not taken into
consideration in this finding that could, but unlikely, affects the statistical findings).
90.
Vincent Wyatt, Drug Free School Zones Raise Stakes in Nashville,
Tennessee, AVVO, (Jan. 11, 2012) (quoting Nashville, Tennessee attorney Vincent Wyatt)
http://www.avvo.com/legal-guides/ugc/drug-free-school-zones-raise-stakes-in-nashvilletennessee (“As one can imagine, in Nashville and other cities this 1000 feet boundary line
can encompass almost an entire urban area. There is no requirement that the drug activity
occur during school hours. Many cases stem from instances where individuals are simply
driving down a major street. One might wonder if this was really the intent of the
legislature, but regardless of that no one can question that the laws raise the stakes on
almost every felony drug case in Nashville.”).
91.
Jamie Satterfield, 82% of Drug-zone Defendants are Black; Lawyer Sees
‘Gross Disparity,’ KNOXVILLE NEWS SENTINEL, (Nov. 12, 2010, 12:00 AM) (quoting
Knoxville, Tennessee attorney Susan Shipley) http://www.knoxnews.com/news/localnews/82-of-drug-zone-suspects-are-black (noting that DFZLs cause "a gross disparity," and
that "[t]he disparity we're seeing here is something the (U.S.) Justice Department needs to
look into").
expressed by Tennessee’s legal community regarding the state’s DFZL.92
Ultimately, the concern expressed93 questions the effectiveness and practical
implications of Tennessee’s DFZL, and in light of wide spread data on the
topic, this concern is anything but a chimera.
Cause for Concern and Legislative Action
Research and statistical data clearly demonstrate a recent recognition
by states of the need to review and tailor DFZLs to meet each jurisdiction’s
specific needs. Findings have demonstrated that the “buffer zones” employed
under these laws, when not adequately tailored, have rendered the primary
deterrent value of the law ineffective and have caused significant disparate
impacts on minorities94 and lower-income classes.95 Many states, including
those with localities similar to Tennessee, reviewed their DFZLs, found
92.
See also, State v. Peters, No. E2014-02322-CCA-R3-CD, 2015 Tenn. Crim.
App. LEXIS 889, at *36–43 (Nov. 5, 2015) (McMullen, J., dissenting) (providing insight into
discontentment with Tennessee’s DFZL by the state’s judiciary and legal community).
93.
James Nix, What Drug-free School Zones Do for Cops, Criminals, THE CITY
PAPER, (Nov. 12, 2010, 3:55 PM) (quoting assistant public defender from Nashville,
Tennessee, Melissa Harrison) http://nashvillecitypaper.com/content/city-news/what-drugfree-school-zones-do-cops-criminals (“Harrison points out there are no safeguards to
preventing police from intentionally stopping someone in a school zone, and “the other
thing is that almost anywhere is within 1,000 feet of a school.’”); see also Russell F.
Thomas, Know More About the Tennessee Drug Free School Zone Act, ARTICLESNATCH,
(quoting
Nashville,
Tennessee
attorney
Russel
F.
Thomas)
http://www.articlesnatch.com/blog/Know-More-About-The-Tennessee-Drug-Free-SchoolZone-Act/1709617#gsc.tab=0 (last visited Nov. 20, 2015).
94.
THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY
INSTITUTE, supra note 14 passim.
95.
JUSTICE POLICY INSTITUTE, supra note 14, at 4.
significant unwanted effects, and made beneficial changes to their law.
These reforms are brought about by the hard-work and determination of
state congressional bodies,96 judicial bodies,97 executive bodies,98 research
institutions or groups, the legal community, and others. Similar movements
and efforts continue to occur throughout the nation, indicating a modern
trend towards re-evaluating the current state of DFZLs.99
Report Suggestions
For the aforementioned reasons, Tennessee policymakers should
exercise care and concern regarding the effectiveness and potential
implications of their state’s DFZL.
The similarities between jurisdictions
who have discovered negative effects of their DFZLS are not quite distinct
from Tennessee. This report suggests reducing the size of the “buffer zones”
96.
THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY
INSTITUTE, supra note 14 passim.
97.
See, e.g., JUSTICE POLICY INSTITUTE, supra note 14, at 26 (discussing the
efforts of Judge Barnett Hoffman, a presiding judge of the Middlesex County court).
98.
See, e.g., THE SENTENCING PROJECT, supra note 14, at 4 (discussing the
efforts of Governor Mike Pence); id. at 5 (discussing the efforts of Governor Deval Patrick);
id. at 6 (discussing the efforts of Governor Jon Corzine).
99.
See
THE
SENTENCING
PROJECT,
supra
note
14,
at
3–4
http://sentencingproject.org/doc/publications/sen_Drug-Free%20Zone%20Laws.pdf
(“Further reforms may soon be enacted. In the 2013 legislative session, Connecticut’s Black
and Puerto Rican Caucus sponsored a bill that would have reduced the size of the state’s
drug-free zones from 1,500 feet to 300 feet. The bill was debated in the Connecticut House
of Representatives but Republican opponents succeeded in filibustering the bill and its time
expired without a vote. As a result, the bill stalled and will not become law for 2013.
Nevertheless proponents of the bill have vowed to introduce it again in the next legislative
session.”).
under Tennessee’s DFZL, removing the buffer zones around “recreational
centers,” and avoiding the creation of buffer zones around “public housing.”
At the very least, in the interest of justice, this report urges a state
congressionally
led
evaluation
of
Tennessee’s
effectiveness and value of the legislation.
West Tennessee Drug-Free Zones
DFZL
to
ensure
the