Feature: High School Drug Bust and Hard-Line Prosecutor Prove Volatile Mix in Western Massachusetts County 6/3/05

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It all started last fall in Western Massachusetts' Berkshire County, when, after an eight-month long undercover investigation and sting by the county sheriff's office, officers arrested 18 young people, most under the age of 20, for small-scale drug dealing and drug possession. So far, business as usual. But when Berkshire County District Attorney David Capeless announced he would charge most of them, including seven people charged only with selling small amounts of marijuana, under the state's draconian drug-free school zone law, he incited a civic rebellion that has yet to reach a conclusion.

heartless district attorney David Capeless

Like school-zone laws across the country, the Massachusetts law increases the punishment for people violating drug laws within arbitrarily designated distances from schools, parks, or other designated places. In the Bay State, the measure is 1000 feet, and the school-zone law adds a mandatory minimum two-year sentence to the underlying drug offense.

In the Great Barrington bust, the school zone for most cases was actually a movie theater parking lot within 1,000 feet of a church basement pre-school. Thus, prosecutors could charge those netted with school-zone violations. The question that has divided the community is whether he should.

In March, when DA Capeless announced he was pursuing school-zone charges, alarm bells began to sound. As residents became convinced that Capeless could not be swayed, they formed a community group, Concerned Citizens for Appropriate Justice, to seek more appropriate charges and consequences in the cases.

"The impetus behind the group was that fact that so many families were affected," said CCAJ member Ira Kaplan, a former Berkshire County deputy DA. "As a practicing defense attorney, I spoke with a number of people -- moms and dads, brothers and uncles, friends and cousins -- who knew the 17 young people charged with school-zone violations. They all agreed that some punishment was fitting for alleged drug sales in town, but to a person, they all thought two years in prison was too much," he told DRCNet. "In particular, it was too much for those kids who are 17, 18, 19 years old and for whom this is the first offense of any kind. And seven of them were charged only with selling small amounts of marijuana."

That prosecutorial inflexibility rubbed the wrong way, said Kaplan. "A prosecutor's job is to seek justice, not to exact the maximum potential penalty. You are paid by the state and the taxpayers to do the right thing, and sending a 17-year-old to jail for two years for selling a couple of joints does not seem like the right thing."

In March, the group met twice with Capeless, to no avail. At first, Capeless claimed the law required him to file the charges, but while he later backed away from that claim, he remained steadfast in insisting on charging the young people with the charge carrying the mandatory minimum sentence.

The group argued that Capeless was out of line with other prosecutors in the state, and they had some evidence to back them up. According to a study of school-zone charges and convictions, in 1998 in the six least-populated counties in the state, five had no school-zone convictions, while Berkshire had nine. Berkshire County's percentage of school-zone convictions was 14.2% of all drug charges, a number more than twice the state average and exceeded only by heavily urban Hampden County, with 16% of all drug arrests ending up in school-zone convictions.

By the way, that same study of the school zone law, published in 2001 by the Boston University School of Public Health, found the law worse than useless: "It appears from the study findings that the school zone statute (a) does not make the areas around schools particularly safe for children; (b) cannot reasonably be expected to do so; and (c) perhaps as a result, is not used by prosecutors in a way calculated to move dealing away from schools. Instead the law operates generally to raise the penalty level for drug dealing and does so in ways that are unpredictable for defendants."

If Berkshire County seems hard-core on school-zone prosecutions in general, the picture is even more striking when looking at school-zone prosecutions for marijuana sales. According to the Massachusetts Sentencing Commission, last year there were a grand total of two pot-selling school-zone cases in Superior Courts across the entire state. If DA Capeless holds his ground, his small county will prosecute seven in just this one case.

Three weeks ago, Capeless made it clear that he still intends to do just that. He intends to "stay the course in the prosecution of school-zone drug-dealing offenses," he said in a May 12 press statement. "For over 13 years, (former) District Attorney (Gerard) Downing and I pursued a policy of charging and prosecuting school-zone cases, whenever the facts supported them," the statement reads. "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."

His critics do not understand how dangerous marijuana is, Capeless said. "Marijuana is dangerous among teens, and sale is a serious issue and should be prosecuted that way," he said, adding that drug abuse is "a horrible scourge on our community. The effects it has are physical, mental and psychological. The abuse of drugs is the single biggest issue we deal with, and it's related to all sorts of things, including violence... It's difficult to have a reasonable argument with anyone who thinks selling marijuana is not a serious crime."

Capeless' refusal to heed the voices of his constituents has attracted interest in statewide drug reform circles. Whitney Taylor and the Drug Policy Forum of Massachusetts have joined the fray, adding Taylor's years of drug reform experience to the Berkshire County voices calling for a policy shift. Taylor is working with CCAJ on a paid media campaign and its continuing petition campaign for leniency, which is now up to 2,500 signatures.

"I was contacted by community members who knew about the bust and knew a bunch of the kids," Taylor told DRCNet. "The group had started the petition and was trying to work with the DA to look at the cases in this sting individually and charge them based on criminal histories and danger to the community -- things you would think he would consider. Despite getting nowhere with DA Capeless, the group was keeping things quiet, but then he threw down the gauntlet by issuing that press release, so I went back to the group and said we had to go on the offensive. And here we are."

Where they are this week is turning up the pressure on DA Capeless. CCAJ held a news conference Tuesday at the Triplex Cinema overlooking the notorious parking lot to demand Capeless change his charging habits. The area has "very serious problems here that needed strong action by the law enforcement community and it has been effective in making downtown Great Barrington a safer place," said Erik Bruun, one of CCAJ's founders. But the mindless application of the school-zone law, he said, "is costly, unjust and [has] destructive consequences that have absolutely zero correlation to making this a safer community."

Between press conferences, media coverage, letters to the editor, favorable editorials, and the paid media campaign, the effort to win more just charging policies in Berkshire County has led to a newly mobilized drug reform citizenry in the Berkshires. Emboldened perhaps by last year's defeat of hard-line drug war prosecutor Paul Clyne not so far away across the state line in Albany, NY, CCAJ and the Drug Policy Forum of Massachusetts are vowing to either change the DA's charging policies or change the DA.

"By failing to exercise his prosecutorial discretion, Capeless is abusing that discretion," said Kaplan. "In this case, blind justice is truly blind. If we cannot get him to come around, we are discussing many options. Those include changing the law, but the worst problem is not the law but its application here. We are also continuing to apply pressure on this DA, and there is talk about finding someone to run against him."

"We're kicking some butt," chortled Taylor. "The DA is running scared, and he should because we are going to take this to the end. Either Capeless is going to announce that he is changing his policy, or he is going to announce that he has lost the next election."

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Issue #389 -- 6/3/05

Drug War Chronicle, recent top items


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Feature: US Congressman Criticizes Drug War at John W. Perry Fund Reception in Seattle | Feature: British Courts Reject Medical Marijuana Necessity Defense | Feature: High School Drug Bust and Hard-Line Prosecutor Prove Volatile Mix in Western Massachusetts County | Weekly: This Week's Corrupt Cops Stories | Medical Marijuana: Lawmakers Raid Oregon Medical Marijuana Program Surplus | Sentencing: 9th Circuit Says Prisoners with Appeals Pending Can Challenge Sentences | Sentencing: Connecticut Governor Vetoes Bill That Would Have Eliminated Crack and Powder Cocaine Sentencing Disparities | Marijuana: Alaska Governor Plotting Against Marijuana Again, Eyes 2006 Session | Marijuana: Milton Friedman and 500 Economists Call for Debate on Prohibition as New Study Suggests Regulation Could Save Billions | Asia: China Says Drug War is Failing | Australia: First "Drugged Driver" to Sue Police for Defamation | Asia: Philippines Farmers Say No Road, No End to Marijuana Growing | Job Listing: National Field Organizer, ACLU Drug Law Reform Project | Weekly: The Reformer's Calendar

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