New Jersey drug-free zone laws produce "devastating" disparity, no deterrence

New Jersey's drug-free zone laws have no deterrent effect on drug sales near schools but instead fuel racial disparity in imprisonment according to New Jersey's Commission to Review Criminal Sentencing and a new report coauthored by policy analysts with Justice Strategies and Justice Policy Institute. Since the state's "school-zone" law took effect, the proportion of blacks admitted to prison for drug convictions has risen four times faster than the proportion of whites. A stunning 96 percent of New Jersey prisoners sentenced under the state's drug-free zone laws are black or Hispanic.

New Jersey maintains the highest percentage of people imprisoned for drug offenses in the country – 36 percent, compared to a national average of 20 percent – and the state ranks among the worst in the nation in terms of racial disparity in imprisonment. New Jersey's "drug-free zone" laws, which heighten penalties for drug activity near schools and other locations frequented by children, bear much of the blame.

New Jersey's school zone law [N.J.S.A. 2C:35-7] provides that distributing, dispensing, or possessing drugs with intent to sell on school property, within 1,000 feet of a school or a school bus, or while on any school bus, is a third-degree offense carrying a three-year mandatory minimum prison sentence. As such, it is virtually the only third-degree non-violent offense in the New Jersey Code of Criminal Justice which mandates a minimum term of imprisonment.

In 1998 a second law provided enhanced penalties for drug sales within 500 feet of public housing, parks, libraries, and museums. This law does not provide a mandatory minimum prison term. Rather, it upgrades a third-degree drug sale to a second-degree offense, for which a prison term is the presumptive sentence.

The New Jersey Commission to Review Criminal Sentencing recently took a comprehensive look at the drug-free zone laws and found that the law has no deterrent effect and is a major contributor to alarming levels of racial disparity in incarceration. Their commission's conclusions are consistent with the findings of research from other states, including Massachusetts, Connecticut and Utah.

The purpose of drug-free school zones was to "create a safe harbor for children by pushing the pushers away," according to New Jersey Assistant Attorney General Ron Susswein. But sentencing commissioners could find no deterrent effect of the drug-free zone law. Fewer than one in 10 arrests takes place just outside the zones. Moreover, the number of drug-free zone arrests has risen since the law was enacted, rather than falling – as would be expected if drug sellers had moved their activity to avoid prohibited zones.

The commission's report concluded that the large size of the zones erodes their deterrent effect. The laws blanket densely-populated areas with overlapping zones and are frequently applied to transactions that take place far from schools and with no children present. According to Judge Barnett E. Hoffman, chair of New Jersey's Commission to Review Criminal Sentencing, "Giant unbroken drug-free zones actually dilute the special protection the laws are supposed to offer".

Communities of color are disproportionately impacted by drug-free school zone laws. Densely populated urban neighborhoods, where people of color are more likely to live, are blanketed by prohibited zones, while rural and suburban neighborhoods are less affected. In New Jersey, three-quarters of Newark, and over half of Jersey City and Camden, falls within a zone compared to just six percent of rural Mansfield Township.

The result of this "urban effect" is what New Jersey's sentencing commission terms "a devastatingly disproportionate impact on New Jersey's minority community." Since the law took effect, the proportion of blacks admitted to prison for drug convictions has risen four times faster than the proportion of whites incarcerated for drug offenses. Blacks and Hispanics make up 26 percent of New Jersey residents but they comprise 96 percent of those imprisoned for a drug-free zone offense.

Unequal enforcement also appears to contribute to sharp racial disparities in incarceration rates. National studies have found that whites, blacks and Hispanics use illegal drugs at similar rates, and also that most users obtain drugs from people with their own racial or ethnic background. Yet blacks in suburban and rural parts of New Jersey are nine- to 14-times more likely to be arrested for a drug-free zone offense than their white counterparts, and eight- to 24-times more likely to be convicted of a drug-free zone offense.

Drug-free zone arrest rates by race

New Jersey was one of the first states to enact its own version of the federal drug-free zone statute, so it is appropriate that the state was the first to seriously scrutinize the law's effects. Spurred by advocates who raised concerns about the impact of the drug-free zone laws on urban communities, the New Jersey state legislature established a sentencing commission in 2004 that made the laws the subject of its first investigation.

The commission has recommended that the legislature should reduce the prohibited zones to 200 feet in order to enhance its deterrent effect while minimizing the use of laws for activities that clearly fall outside its original intent as well as their role in driving racial disparities in imprisonment. The commission also recommended restoring judicial discretion in sentencing school zone cases while increasing the presumptive penalty for offenses that take place within the new, smaller zones. Key legislators and officials in the state, including police and prosecutors, have voiced support for the commission's recommendations.

Portions of this story were previously published in Disparity by Design: How drug-free zone laws impact racial disparity – and fail to protect youth. Click here for more information on drug-free zone laws.