A Moving Violation - Hypercriminalized Spaces and Fortuitous Presence in Drug Free School Zones (2003)

I. Introduction Over the last thirty years, both the federal government and a majority of states have enacted statutes that prohibit certain types of conduct involving illicit drugs in or near schools, school buses, or other youth or family-related facilities and locales.1 These statutes vary from jurisdiction to jurisdiction in terms of whether they stand alone as separate offenses or serve as a sentencing enhancement and in terms of the defenses available. The net effect of such statutes in either case is to hypercriminalize certain areas or spaces where drug activity takes place by increasing the length of incarceration after conviction. Such statutes have been subject to a number of challenges over the years. Chief among them are constitutional claims that such statutes are an invalid exercise of legislative or police power, violate due process and equal protection guarantees,3 violate the Eighth Amendment's prohibition on punishment that is grossly disproportionate to the crime,4 violate double jeopardy provisions,5 or are overbroad.6 A number of other claims have been based upon the allegedly vague and arbitrary nature of statutes that punish persons who were found with drugs in their vehicles while passing through school zones7. A third set of claims point to the lack of a requirement that the offender intended to be present in the drug-prohibited zone.8 To date, virtually none of these challenges have succeeded, and both federal and state schoolyard statutes are widely hailed as major weaponry in the war against drugs.9 In this article, I discuss these frequent challenges to schoolyard statutes in order to set the stage for what is a far more provocative and as yet unaddressed aspect of schoolyard statutes: the role of of spaces. This article looks at schoolyard statutes and considers the problem of hypercriminalization of spaces as it affects two aspects of the statute. The first is the problem of persons possessing prohibited substances whose presence in the prohibited zone is due to luck or happenstance. Although there has been an uncanny degree of uniformity throughout courts' decisions to uphold schoolyard statutes against a wide variety of challenges, a review of the cases involving happenstance or fortuitous presence in school zones suggests that courts may, under particular circumstances, be unwilling to find liability for presence in the zone which is so fleeting, tangential, or fortuitous that there would be manifest injustice were the statute to be applied.10 The second aspect of hypercriminalization which this article addresses is a less frequently litigated aspect of schoolyard statutes: liability for drug possession in or near school buses and public housing projects. Schoolyard statutes routinely extend liability to such areas. The question which grows out of this added liability for drug activity near schools or near other areas is whether justice and the goal of a drugfree America clearly demand the creation of this hypercriminalized space and the consequent lengthened incarceration in such cases. The first section of this article discusses the nature of criminalized and hypercriminalized spaces in general, and drug-free school zones as hypercriminalized spaces. The second section details the creation of federal schoolyard statutes and recurring challenges to their validity. The third section discusses congressional power to act in the area of drug interdiction. Section Four considers Equal Protection and Due Process claims arising from presence in schoolyard zones. Section Five examines several menu rea challenges to schoolyard statutes. The sixth section looks at Eighth Amendment challenges to school zone statutes. In section seven, I describe liability arising from proximity to school buses and housing projects and how hypercriminalization effectively deperimeterizes some locales. Finally, the article concludes with a discussion of how the various points under discussion in this paper relate to the notion of the hypercriminalization as a method of crime control. …