Local defense attorneys are praising a decision by the state's highest court that retroactively applied changes to the statute on drug-free school zones, with its mandatory minimum sentences.
"It was a good decision and good for our client. It was the decision we were looking for," said attorney Stephen N. Pagnotta of the law firm of Donovan & O'Connor. Pagnotta filed the original motion to dismiss in the test case that went before the Supreme Judicial Court.
In August 2012, Gov. Deval Patrick signed into the law the omnibus Crime Bill that, among many other changes, amended the school-zone violation.
The statute elevates jail time for someone facing drug dealing charges if they are doing so near a school. The statute carries a minimum mandatory sentence of two years incarceration on and after whatever time a defendant gets for the underlying drug charges.
The new law reduced the distance from 1,000 to 300 feet from any school, including Head Start programs, preschools, elementary, secondary and vocational schools.
"From a defense point of view, it's a welcome decision," said attorney Nathaniel K. Green, who heads up the county's Committee for Public Counsel Services.
"It's a commonsense approach," said attorney David Pixley. "It makes sense and it's a great decision." Pixley said he has two cases directly affected by the decision.
Green said that particular statute had been "unclear" on whether it applied to older, still pending cases with arrest dates prior to the new law's August 2012 enactment. He said some of the other provisions in the Crime Bill, including the reduction of minimum mandatory sentences for drug trafficking, were clearly retroactive.
It was a Berkshire County case overseen by District Court Judge Paul M. Vrabel that paved the way for the SJC to dive into this issue.
On Nov. 8, 2010, Williamstown Police executed a search warrant at the Williams College dorm room of Zachary Bradley, located 700 feet from the college's preschool facility. Bradley was charged with possession of marijuana with the intent to distribute and a school zone violation. Pagnotta moved to have the school zone violation dismissed based on his belief that the revised statute applied retroactively to any open cases.
"It seemed like a reasonable argument," said Pagnotta.
Vrabel, who is overseeing the case, reported the question to the higher court without making a ruling. In this way, said Pagnotta, they bypassed the possibility of an appeal and two trials.
The Williamstown case, along with a companion case, was heard before the SJC in October and November. The decision was rendered earlier this month.
In a somewhat unusual move, the justices delved deeply into the impact that the original 1989 school zone statute had on the state. The justices wrote that although the original law was enacted "to protect school children from drug dealers by creating drug-free school zones," it went too far as originally written.
"[S]ince its enactment, various studies have shown that the 1,000-foot radius was overboard, and that its overbreadth has an unfair impact on those living in urban communities," they wrote.
The judges quoted one study that determined the statute's "patterns of conviction indicate it has more effectively created a two-tiered system of drug sentencing" in the state. Massachusetts schools are more numerous in "dense urban areas" with the result that "most of the state's Black and Latino residents face longer mandatory minimum sentences for drug offenses than the state's rural residents, who are predominantly white," the justices wrote.
Pagnotta said he wasn't surprised that the justices focused on this since it was a major part of their argument, but was surprised by the speed of the decision, which he said took "a little over a month."
In the end, the justices determined that although the state Legislature did not specifically make the law retroactive, the law had been changed in part because, as originally written, it "was recognized to create an unfair disparate impact on those residing in urban areas" and "minority residents" while not impacting the original intent to "better protect school children from drug dealers."
The justices believed that because of this inherent unfairness, the law should be applied retroactively since it "affects all urban communities by subjecting their residents to a greater likelihood of a school zone sentencing enhancement than residents in suburban and rural communities."
Bradley's case remains pending. He still faces a charge of possession of marijuana with the intent to distribute and an unrelated possession of cocaine charge. But he won't be looking at a minimum mandatory two years on a school-zone violation, since he was allegedly more than 300 feet away from the daycare facility at the time of his arrest.
Berkshire District Attorney David F. Capeless did not return a call seeking comment.
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