observer
Busted in a school zone
Berkshire County case fuels movement to reform state's
drug laws
By DAVID SCRIBNER
Contributing writer
GREAT BARRINGTON, Mass.
Last Sept. 17 was the kind of heartbreakingly warm,
golden green Berkshires afternoon on the cusp of fall that lets the illusion of
endless summer linger.
Jesse Watkins, 18, was at his parent’s home in a rural
neighborhood near the Butternut ski area east of town. A 2004 graduate of
Monument Mountain Regional High School, Watkins was getting ready for work as
head waiter at a local restaurant. He was also awaiting word on whether he’d
have a second job at a downtown store.
Like many of his fellow Monument Mountain graduates,
he was saving up money and taking a few courses at a nearby community college
while he decided the direction of his future education. His plans were about to
be interrupted.
A police car with several officers pulled into his
driveway. In front of his stunned father, the terror-struck youth was read his
rights, arrested and placed in handcuffs, charged with selling drugs within
1,000 feet of a school. He was hauled off to the local lockup and, in shackles,
arraigned before a magistrate. He was released on his own recognizance.
That day, from six South Berkshire communities, town
and state police rounded up 16 others,
ranging in age from 17 to 32. A few days later, an 18th youth was brought in.
All but one of the accused have had the charges
against them "enhanced" under the state’s drug-free school zone law.
The law, in place for the past 16 years, imposes a mandatory minimum of two
years in jail if the defendant is found guilty. The cases will come to trial in
July and August.
The alleged drug dealing — 13 instances of marijuana,
eight of cocaine, two of the anesthetic ketamine and one of ecstasy — is said
to have taken place in the Taconic parking lot behind the Main Street retail
district.
The arrests of the Taconic 18, as the defendants have
become known, were the culmination of an eight-month sting conducted by the
Berkshire County Drug Task Force. The sting involved a 29-year-old undercover
agent from Pittsfield who claims to have made audio recordings of himself
buying drugs from the suspects, law enforcement officials and parents of the
accused have said.
None of those charged is accused of selling drugs to
school-age children.
Ground zero for the school zone charges is a preschool
with an enrollment of 25 to 30 children, ages 3-5, in the basement of the First
Congregational Church, out of sight of the parking lot on the other side of
Main Street. The school wasn't in session when the alleged dealing took place.
“I hadn’t even thought of the law as applying to a
preschool,” said the church’s pastor, the Rev. Charles G. VanAusdall. “I would
have thought it applied to elementary and high schools, where there might
conceivably be some vulnerability of children to drugs.”
Shock, then
anger
The police action shocked and embarrassed a community
more accustomed to reading about drug arrests in urban Pittsfield to the north,
where poor neighborhoods are perceived to attract big city dealers, than in the
very center of an affluent resort town whose economy depends upon second-home owners and tourists on the
culture circuit.
But embarrassment turned to disbelief — and then anger
— as the nature of the accusations and the consequences became clear.
Berkshire County District Attorney David Capeless, following
what he said was a 13-year-old policy of his office, insisted on invoking the
enhanced school zone charges in every case for which they could be imposed. The
result is that in half the cases, youths who have no previous police record and
were only caught with small quantities of marijuana now face a mandatory two
years in prison if convicted. The total amount of marijuana involved in all of
these cases was less than an ounce, the parent of one of the accused says.
Outraged parents, clergy, business and community
leaders formed Concerned Citizens for Appropriate Justice, a group that
gathered more than 2,000 signatures on a petition protesting the severity of
the punishment and demanding the district attorney “use discretion when
charging individual defendants."
Capeless, however, refused to budge. Instead, he
issued a statement last month -- his last to the press on this matter --
defending his decision to seek the extra penalty in school-zone drug-dealing
offenses. He declined to be interviewed for this story.
“For more than 13 years, my predecessor and I have
pursued a policy of prosecuting school zone cases whenever the facts supported
them,” Capeless wrote in his statement. “This past year, I have continued that
policy because it is even-handed and fair, and because it has proven effective.
I intend to continue that policy.”
Now the local citizens group has joined forces with
the Drug Policy Forum of Massachusetts, a statewide coalition that advocates
treatment, education and prevention to deal with drug abuse. On May 31, the two
organizations announced a campaign to reform state sentencing laws and stop
“the misguided and rigid application of the law in Berkshire County.”
The latter goal is likely to succeed only if Capeless
is defeated when his term expires in two years.
'Equal
opportunity enforcer'
Berkshire County Sheriff Carmen Massimiano, whose new
jail in Pittsfield would likely house the defendants if they are found guilty,
defends the district attorney’s policy.
“David Capeless is an equal opportunity enforcer,”
Massimiano said. “There are plenty of arrests for marijuana and drug possession
in school zones in Pittsfield, but nobody noticed because they’re black or
Hispanic or from out of town. Great Barrington has had a serious problem with abuse
of drugs for a very long time. Local police, the Drug Task Force and the DA try
to put a stop to it, and what do we find? They are our own kids.”
Richard Wilcox, the police chief in the neighboring
town of Stockbridge, agrees with the sheriff that Capeless faces a dilemma in
trying to have a uniform application of the law.
“He’s stuck between a rock and a hard place,” said
Wilcox, who also serves as a board member of Great Barrington’s Railroad Street
Youth Project, an organization that seeks to steer youth away from drugs and
destructive behavior. “What about some poor minority kid in Pittsfield whose
family and friends can’t do battle? It’s one thing to use this school zone
penalty against a deserving individual. But the problem with this policy is it’s
being used like a blanket for everyone, and judges are not allowed discretion
in determining the punishment.”
Wilcox disputes the district attorney’s assertion that
imposing school zone charges against all defendants is effective.
“This is feel-good legislation,” he said. “If the
intent is to prevent drug abuse and drug dealing in and around schools, it
falls flat.”
A law that
isn't working?
Whitney A. Taylor, executive director of the Boston-based
Drug Policy Forum of Massachusetts, agrees with the police chief that the
school-zone law isn't working. But she insists the Berkshire campaign against
the law extends beyond the cases in Great Barrington.
“The law was intended to put the drug kingpins away,
but that’s not what’s happening,” Taylor said. “We are getting only the lower
rung, the users. Drug control simply isn’t working. Mandatory sentencing isn’t
working. Nationwide, 2.2 million people are in jail, yet our society is no
safer nor healthier.”
Taylor agrees that mandatory sentencing has unfairly
focused on minority populations. In Massachusetts, 83 percent of the mandatory
sentences in school-zone drug convictions are meted out to blacks and
Hispanics, who comprise only 9.2 percent of the state's population.
But Taylor argues that the Concerned Citizens for
Appropriate Justice campaign will encompass all Berkshire youth.
“The race card is a red herring,” she said. “Though
this movement started in Great Barrington, it will benefit everyone in this
county.”
She pointed out that Capeless’ tactics are unique in
Massachusetts.
“There’s not a DA in this state, besides Capeless, who
uses the school zone charge against a first-time offender who’s trading small
amounts of marijuana,” Taylor said. “Let’s look at individual cases. This is
going to ruin families and ruin lives for some of these kids. We need to make
sure that justice is being pursued equitably throughout the state.”
Study raises
doubts
Capeless did meet twice with the local citizens group.
After the first meeting, Taylor said, the prosecutor asked for data to support
the group's claim that mandatory minimum sentences were ineffective. At the
second meeting, she said, the group presented him with research to support that
view.
But the district attorney implicitly rejected that
research when he announced May 11 that he would not weigh the Great Barrington
school-zone charges on a case-by-case basis. Instead, he characterized the
cases as a matter of safety for children.
"I believe I bear a special duty to protect the
most vulnerable of our fellow citizens, particularly our children,"
Capeless wrote. "The use of illegal drugs, particularly marijuana, by
ever-younger children is a cause for serious concern among those in law
enforcement, and we are committed to acting diligently in pursuing those who
create such a threat."
Among the studies the citizens group had presented to
Capeless was a survey conducted through Boston University’s School of Public
Health by William N. Brownsberger, a former assistant attorney general in
narcotics and special investigations.
In 2001, Brownsberger examined 443 school-zone drug
arrests in New Bedford, Fall River and Springfield.
“The conclusion of our study,” he told a U.S. House
subcommittee in April, “was that the school zone law served primarily to
enhance penalty levels generally but did little accomplish the express purpose
of the legislation — to move drug dealers away from schools. It would be more
effective to use a much smaller radius, which would give dealers a real
guideline to avoid. One incidental finding of the study was that less than 1
percent of the incidents in our sample involved dealing to minors.”
Based upon this and other research, Taylor’s
organization is supporting passage of seven bills now before the Massachusetts
Legislature to reform mandatory minimum sentencing procedures.
"We need a more holistic approach, one that
emphasizes alternatives to sentencing,” she said.
Wary
legislators
The prospects for legal reforms at the state level are
not bright, however, even among
legislators who are sympathetic to the reforms’ goals.
“I don’t support mandatory minimum sentencing,”
declared state Rep. William F. “Smitty” Pignatelli, D-Lenox, whose district
includes Great Barrington. “It’s a 15-year-old law we need to re-evaluate. But
it’s a long shot at best. If guys like me stick their necks out to reform it,
then people will have to support me when the Republicans put up a conservative
candidate who claims I’m soft on crime.”
Still, Pignatelli is openly critical of the Great
Barrington undercover operation.
“After six or eight months, they didn’t find any
heroin, which is the real problem, and only a few ounces of marijuana,” he
complained. “They didn’t get the dealers. They got a couple of stupid kids
trading joints with their friends in a parking lot. The Barrington selectmen
were disappointed and shocked.
“This isn’t to say that marijuana isn’t a problem and
isn’t illegal," he continued. "But as a society, we’re becoming more
tolerant of grass — that’s the perception. I’d rather see them in counseling or
on probation for 2½ years. But schools and parents have to wake up to the fact
that drug abuse is more common than they think.”
Pignatelli said the district attorney's intransigence
in this case is prompting speculation about Capeless' political future.
“The group protesting mandatory sentencing is planning
to recruit a high-profile opponent to Capeless in the next election,”
Pignatelli said. “The issue will be, ‘Your kid could be next.’ "
But state Sen. Andrea F. Nuciforo Jr., D-Pittsfield,
said he's convinced the evidence at trial will justify the 18 arrests, although
he said he's willing to revisit the mandatory-minimum sentencing laws.
“David Capeless is employing a uniform application of
the law in order to instill a general deterrence to drug abuse," Nuciforo
said. "I think that school zone charges are good examples of this
principle. It’s true that in the eastern end of the state, district attorneys
in other jurisdictions routinely reduce school zone charges, but the Berkshire
DA office has had a longstanding policy of using school zone enhancement
whenever the facts supported it.”
Nuciforo also recalled that last year the Legislature
earmarked $50,000 in extra funds for police patrols North Adams, Pittsfield and
Great Barrington because police departments and the district attorney’s office
had requested it.
“I think what you’re seeing in these 18 arrests is the
result of the concerns of selectmen and businessmen,” Nuciforo said.
Scene of the
sting
The Taconic parking plaza, behind the thriving
downtown retail district and next to the Triplex movie theatre, serves, as much
as any other public space in the town, as a magnet for young people. Several
years ago, some of these young people lobbied for permission to create, on a
concrete retaining wall along the parking lot's north side, a mural of Great
Barrington native W.E.B. Du Bois, the controversial civil rights leader whose
history otherwise has received no official recognition from the town.
From the parking lot, alleys open out to Railroad
Street; a retail concourse connects the lot to Main Street. Restaurants, pubs
and a music club open onto the lot. It is a natural confluence of social and
commercial activity for youth -- and for shoppers and for tourists. And that is
the problem.
For the past year, merchants and town officials had
been growing increasingly angry about the behavior — often insolent, sometimes
violent — of those hanging around the parking lot. After an elementary school
teacher was assaulted in the lot, the Southern Berkshire Chamber of Commerce
pleaded with the local Board of Selectmen to clear the lot of loiterers. The
board went to the Police Department, which in turn contacted the county’s Drug
Task Force.
It wasn’t the first time merchants had been troubled
by the presence of youths in public spaces. Nine years ago, it was benches. To
make Main Street sidewalks inviting to pedestrians, especially tourists, the
town installed benches. Soon enough, local kids were hanging out on the
benches, and shop owners demanded the police keep young people off the benches
and sidewalks. One businessman went so far one night as to remove the bench in
front of his store.
The furor over where young people might go prompted
the formation in 1999 of Railroad Street Youth Project and, eventually, the
creation of a community center with recreational facilities. Today, the youth
project's drop-in center -- equipped with funky, comfortable chairs and
couches, books, video games, art supplies and an awesome chess set -- is in the
Triplex Movie Theatre complex, adjacent to the now notorious Taconic parking
lot.
The youth center encourages literacy and education,
and it spends $10,000 a year to underwrite the production of plays, readings, books
and art shows created by local young people.
Adults vs.
adolescents
Amanda Root, a high school dropout, is the founder and
director of Railroad Street Youth Project. Having earned her GED, she’ll be
attending Bryn Mawr College in Pennsylvania in the fall.
Root, 24, established the youth project in response to
what she saw as the corrosive effects of the town’s drug problem and the lack
of places for youths to hang out. Her best friend back then, she said, was a
heroin addict.
“There is a strong sense of community in Great
Barrington,” she explained as she lounged in an armchair at the drop-in center
on Railroad Street. “We want to encourage economic development, but there are
few public spaces for kids. Adolescence is an interesting time. You want to be
seen, but you don’t want to be taken care of. Your judgment is changing, just
like an infant’s.”
Although Root's organization is backed by the local
business community and philanthropic institutions, and serves about 130 young
people, neither the selectmen nor the police asked for the organization’s help
in dealing with kids making trouble a 100 feet away.
“As a community, we have so many resources and
programs, I don’t see why they didn’t ask us to use them for these kids who
were in trouble,” she said. “It takes parents, schools, mentors and store
owners — a whole village — to raise kids.
“I don’t believe in minimum mandatory sentencing. It
doesn’t work,” she went on. “It’s an adult law, and adolescence is all about
not knowing who you are or what’s at stake — and it can last until you’re 24.
We’re only fueling a cycle of crime and preventing us as a society from being
free and progressive. It kills opportunities forever.”
A question
of fairness?
Across a walkway from the youth center and down the
hall, in the refurbished second floor of a Railroad Street building, is the
office of Lenox Capital Inc., a fund management firm operated by Eric Bruun.
He’s the board chairman of the Railroad Street Youth Project. He's also the
person behind the formation of Concerned Citizens for Appropriate Justice and
the petition opposing the district attorney’s procedures for handling school
zone arrests.
“At first, I didn’t think we should be involved,”
Bruun said. “I take a hard position on marijuana use. It’s illegal, and the
town had to respond to the volume of drug trafficking — or what appeared to be
drug trafficking.”
But he makes distinctions among the Taconic 18 that
Capeless has declined to make.
“A handful of people deserve to have the law have its
way,” Bruun said. "But is it fair for someone with no previous interaction
with the law to go to jail for two years? No.”
He also disputes Capeless’ argument that the school
zone charge must be imposed in every case as a matter of fairness.
“The fact is district attorneys drop charges all the
time," Bruun said. "Capeless doesn’t have to do this.”
He points to a case in Pittsfield in early May in
which school zone drug-dealing charges were dropped against a 19-year-old who had
been accused of possession of cocaine and marijuana with intent to distribute,
breaking and entering, and possession of a large-capacity weapon, all within a
school zone. The defendant in that case was given probation for testifying
against another defendant.
Bruun also cites the public statements of Bristol
County District Attorney Paul Walsh, who recommends a flexible approach in drug
cases, including the use of an alternative sentencing specialist who identifies
individuals eligible for placement in treatment programs.
Jail time, Bruun believes, is “an excessive and costly
response.” His group estimates it would cost the state $1 million a year to put
the Taconic 18 behind bars.
“That money could be well spent on prevention and
treatment, reserving jail for violent offenders and major dealers,” the group
wrote to the district attorney.
Bruun also argues there is no proof after 13 years
that the district attorney's office policy on school zone drug cases has
actually reduced drug abuse in Berkshire County. A survey of 10th graders in
the southern part of the county, for example, found that nearly 50 percent had
tried marijuana, compared with 33 percent nationwide; 17 percent of eighth
graders had used marijuana; and more ominously, area seniors are twice as
likely as those in the rest of the state to use heroin.
“What we have here is the use of the drug law to clean
up a parking lot," Bruun said. "The use of drugs in rural areas is
far higher on a percentage basis than in suburban or urban areas. If these kids
were really dealing drugs, then they should be punished, but the question is
whether two years in jail is appropriate punishment for all of them. Will that
really change people’s behavior?”
He also disputes the insinuation by some that his
group is favoring an affluent group of young people after ignoring school zone
charges in Pittsfield and other communities where the defendants might more
likely be black or Hispanic.
“These are not kids of privilege,” he said. “They
really have no future here. If they stay, the only jobs available to them will
be those in the servant class. The average pay in Pittsfield is higher than in
Great Barrington.”
And he added, “It’s true: The majority of those
prosecuted for drugs are black and Hispanic. But where’s the racism? In those
who stand up for kids — white or black — who are charged? Or in the system of
prosecution that arrests minorities?”
'Just being
stupid'
VanAusdall, a native of Missouri, has for 20 years
been pastor of the Congregational Church whose preschool became the
justification for the school zone charges.
Across Main Street from the church is Carr Hardware
and an alleyway leading to the movie theater and a sandwich shop. The gray
stone church has an impressive bell tower, and standing in the parking lot next
to the church, VanAusdall looks up and recalls that many years ago, drug
dealers used to hang out in the municipal parking lot next to the church.
“State police used to get up in the tower and film the
activity down below," he said. "Then, they’d come down and arrest
them.”
But he said he's disturbed by both the severity of the
punishment and the inability of judges, under mandatory sentencing, to consider
the context of the cases before them. He has signed the Concerned Citizens for
Appropriate Justice petition and written a character reference for one of the
youthful defendants.
“Real drug dealers aren’t stupid, and I think in many
of the cases before the district attorney, the kids were just being stupid,
simply stupid and innocent about consequences of being stupid," VanAusdall
said. "But do you put them in jail for that?
“In our system of justice, guilt should be separate
from punishment. And the only way to distinguish between defendants, some of
whom are more guilty than others, is to look at individual situations and have
an array of punishments available. For that, you need judges. When you take the
determination of punishment out of the hands of judges, the system simply
doesn’t work.”