Drug law challenged: Broad guidelines include bus stops, PSU property

Sara Ganim
STATE COLLEGE — Scott Marion never thought selling $35 worth of marijuana to a college buddy might land him in state prison for more than two years.

Sentencing guidelines for that kind of crime call for probation to 30 days in county jail — with one huge exception.

If you are caught selling drugs within 1,000 feet of a school, state law says prosecutors can seek a two-year mandatory minimum sentence.

“The purpose was to discourage and penalize drug dealing near schools and near schoolchildren,” said Mark Bergstrom, director of the state Commission on Sentencing.

But the law also encompasses any location within 1,000 feet of colleges, universities, school bus stops, or any property owned by colleges or schools.

That includes the downtown apartment where Marion lived — where he sold the roughly three joints of marijuana. If he’d been outside a “school zone,” Marion would have needed to sell more than 10 pounds of marijuana to receive a sentence above two years.

“The problem here is we have a major university and some kids do experiment with marijuana at major universities,” said Chief Public Defender Dave Crowley. “It’s college kids, for the most part, selling to other college kids, very, very, very small amounts. Do you really want to ruin people’s lives for that stupid mistake?”

Earlier this month, the sentencing commission released a 490-page report on a two-year study of, among other things, school zone mandatory sentences.

Its recommendation: Repeal it.

The reasons: “First, 1,000 feet of a zone really does cover a lot of territory, especially in urban areas,” Bergstrom said. “You’re really covering blocks and blocks that don’t seem to have a connection to the school at all. It’s very broad.

“The second thing, it didn’t seem to have that connection with the (law’s) original purpose.”

Bergstrom said there are other tools that can be used to punish people who sell drugs to children. A sentencing enhancement can be enforced at the discretion of a judge and would carry about the same extra jail time as the school zone’s mandatory minimum, which allows judges no room to sway.

“I think that we all knew that these mandatories didn’t work for any legitimate purpose,” said State College defense attorney Andrew Shubin. “We knew that they didn’t deter crimes. … We all know that we should not be using school zone mandatories when two consenting college kids are exchanging drugs in a dorm room.”

Debating the mandate

A map of State College shows a majority of the borough is within a school zone. Even outside of the borough, plots of land owned by Penn State, churches with day care centers, unmarked school bus stops — even during summer vacation — all are considered schools. Anything within three football fields of them is within a school zone.

“It’s sort of hard to know exactly if you’re in a school zone or not in a school zone,” Bergstrom said. “So if we’re saying we want to provide a safe zone for kids, people should know what that zone is and it’s kind of hard to tell.”

If the legislature doesn’t want to repeal the law, the commission recommended a second option: Amend the law to reduce the “zone” from 1,000 feet around a school to 250 feet, and remove colleges and universities from the mix.

Centre County District Attorney Michael Madeira, who is on the sentencing commission as a nonvoting representative of the state District Attorneys Association, says that while the association has yet to take a position, he disagrees with the findings.

Madeira, as well as prosecutors across the state, says the school zone mandatory rule is a great tool that prosecutors across the state use to negotiate plea agreements.

“By suggesting that a school zone mandatory could apply, and therefore garnering a plea from someone who sold drugs … helps our system,” Madeira said.

If his office stopped using the school zone law, he said, “every defense attorney worth their salt is going to say, ‘Let’s go to trial. What do we have to lose? My guy’s going to get convicted anyway. Or if he gets convicted, he’s not going to do any more time.’ ”

The commission found that this practice floods jails with people who weren’t the intended targets of the law. And defendants sentenced to prison are much more likely to reoffend, it noted.

Shubin calls Madeira’s explanation for why he uses the school zone law “a victory of red meat politics over what’s right and what’s just.”

“Trials are a constitutional right, and it’s cynical to say ‘Let’s avoid them by instituting mandatories,’ ” Shubin said.

The report, which surveyed judges, prosecutors, defendants and attorneys, also found that school zone mandatory sentences were unevenly applied across the state.

“In some counties, it was used in every way possible and in other counties it wasn’t really used at all,” Bergstrom said.

The study showed the sentences were used most in Berks County, and least in Allegheny and Philadelphia counties.

The mandatory also makes no distinction between the type of drug or the quantity being sold. One-quarter ounce of marijuana draws the same sentence as a large quantity of heroin.

“To me, sentencing should be based on the type of drug, the quantity of drug, and it should be left to the court and not to the district attorney’s office,” said defense attorney Jason Dunkle.

Attorney Stacy Parks Miller, who is Madeira’s opponent in the Nov. 3 election, said the law had “a well intentioned purpose” but went far beyond that.

“Even though I fully support other mandatory sentencing provisions, including the mandatory sentence for drugs sold directly to a minor and mandatory sentences based upon the weight of drugs, I am not a fan of this mandatory,” Parks Miller said. “I prefer sentencing to be based upon actual facts of the case, not some geographical measurement of proximity of the incident to the border of property owned by Penn State University, which is often how we see it used.”

Trial comes at cost

Madeira said he believes those who wrote the law intended universities to be considered school zones, otherwise, “they wouldn’t have said ‘university.’ ”

But, he said, his office doesn’t typically enforce the mandatory sentence called for by the school zone law unless a case goes to trial.

That, defense attorneys say, has a chilling effect.

“When a prospective client is charged with delivery of drugs in the State College area, I tell them right away that the school zone statute may be applied,” Dunkle said. “I tell them that if we fight the case in any manner … you are going to state prison if we lose. It’s either plead guilty or face state prison. Someone with four cases, you’re looking at eight years. People who legitimately should fight a case simply won’t because of the fear of the school zones being applied.”

Shubin recalled one case in which a 19-year-old education major and honor student, who had never before been in trouble, was asked to do a “favor” for a friend who had sold him pot.

The student sold the friend some marijuana on two occasions. He soon found out the friend was working with police to arrange the buys to get himself out of a jam.

Shubin said he believed he had a good chance of winning if the case went to trial.

“None of these things mattered,” Shubin said. “All that mattered was that if I was going to test the case … they were going to ask four to eight years.”

Shubin said his client, unwilling to take the risk, pleaded guilty to a felony and spent six months in jail.

“He’s now in a community college, he left Penn State because there was really no sense in him being here,” Shubin said. “A kid that would have earned $60-$80- $90,000 a year as an educator … he’s afraid to even apply for jobs with a felony on his record.”

“The mandatories, in my view, very cynically gave the District Attorney’s Office the opportunity to take a probation case, scare the bejeezus out of kids who have a lot to lose and got them to be confidential informants and set up their friends, elders, colleagues,” he said.

Scott Marion declined to comment while he waits to hear if the state Supreme Court will hear his appeal on the use of mandatories in his case. His appeal argues prosecutors didn’t prove his location was 1,000 feet from Penn State because he was six stories up in an apartment building.