Tennessee’s Drug-free Zone Law: A Comparative Analysis

By: Devon C. Muse

Brief Introduction

This report uses statistical research and comparative analysis to

analyze the current state of drug-free zone legislation in the United States.

This research provides insight to various factors that affect the intended

value and efficiency of drug-free zone laws. Through this information, an

educated analysis of jurisdictions not yet researched becomes feasible. By

evaluating existing research and reforms of drug-free zone regulations in

other states, this report demonstrates that Tennessee is likely suffering from

unintended effects of its drug-free zone law.

Substance Abuse and Youth

The illicit use of controlled substances is a longstanding and prevalent

problem faced by the United States.1 The 2013 National Survey on Drug Use

and Health (“NSDUH”)2 found that approximately 24.6 million Americans, or

1. SUBSTANCE ABUSE AND MENTAL HEALTH SERVS. ADMIN., RISK AND

PROTECTIVE FACTORS AND INITIATION OF SUBSTANCE USE: RESULTS FROM THE 2014 NATIONAL SURVEY ON DRUG USE AND HEALTH 2 (2015) [hereinafter SAMSHA1] http://www.samhsa.gov/data/sites/default/files/NSDUH-DR-FRR4-2014%20(1)/NSDUH-DR-FRR4-2014.pdf (“Substance use and abuse are major public health problems in the United States.”).

2. SUBSTANCE ABUSE AND MENTAL HEALTH SERVS. ADMIN.,, RESULTS FROM THE

2013 NATIONAL SURVEY ON DRUG USE AND HEALTH: SUMMARY OF NATIONAL FINDINGS 9 (2014) [hereinafter SAMSHA2] http://www.samhsa.gov/data/sites/default/files/NSDUHresultsPDFWHTML2013/Web/NSDUHresults2013.pdf (“NSDUH is a primary source of statistical information on the use of

9.4 percent of the population aged 12 or older, admitted to using an illicit

drug during the prior month.3 Despite its efforts, society has made marginal,

if any, gains in curbing illicit drug use by the general population.4

Unfortunately, this problem extends into the nation’s youth.5 In 2013, “8.8

percent of youths aged 12 to 17 were current illicit drug users.”6

Given the vulnerabilities of youth7 and the inherent dangers of illicit

substances, society has taken an interest in protecting adolescents from the

harmful effects caused by illicit substance use. Whether youth engage in

substance abuse often relates to their exposure to factors associated with

illegal drugs, alcohol, and tobacco by the U.S. civilian, noninstitutionalized population aged 12 or older. Conducted by the Federal Government since 1971, the survey collects data through face-to-face interviews with a representative sample of the population. The survey is sponsored by SAMHSA, the U.S. Department of Health and Human Services, and is planned and managed by SAMHSA's Center for Behavioral Health Statistics and Quality. The survey’s data is collected and analyzed under contract with RTI International.”).

3. Id. at 15. 4. Id. at 1 (“The rate of current illicit drug use among persons aged 12 or older

in 2013 (9.4 percent) was similar to the rates in 2010 (8.9 percent) and 2012 (9.2 percent), but it was higher than the rates in 2002 to 2009 and in 2011 (ranging from 7.9 to 8.7 percent).”).

5. SAMSHA2, supra note 2, at 21.

6. Id.

7. Stephen J. Ceci & Richard D. Friedman, The Suggestibility of Children:

Scientific Research and Legal Implications, 86 CORNELL L. REV. 33, 71 (2000) http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2827&context=clr [71, 2000] (noting the dominant view in scholarship that children are highly suggestible and vulnerable to suggestive techniques); see Suggestibility of Children’s Memory, http://www.arts.uwaterloo.ca/~doneill/cogsci600/Kenyon.pdf [434] (noting the “considerable body of research” indicates numerous suggestive techniques that can influence the decisions of young children).

increasing the likelihood of substance abuse (“risk factors”) and factors

known with decreasing the likelihood of substance use (“protective factors”).8

Although the “[r]isk and protective factors include variables that operate at

different stages of development and reflect different domains of influence,

[i]nterventions to prevent substance use [by youth] generally are designed to

ameliorate the influence of risk factors and enhance the effectiveness of

protective factors.”9

One risk factor confronting youth is the perceived availability of an

illicit substance.10 Statistics show that as the perceived availability of an

illicit substance goes up, so does the likelihood that youth used the substance

in the past month.11 When this dynamic is compounded by an actual

availability of the controlled substance in the youth’s locality, serious

problems and concerns arise regarding use of illicit substances by the

adolescent population.12

8. SAMSHA1, supra note 1, at 1. 9. SAMSHA1, supra note 1, at 1; SAMSHA2, supra note 2, at 71. 10. SAMSHA2, supra note 2, at 76; see also SAMSHA1, supra note 1; id. at 12

(“Many studies have demonstrated that the availability of drugs (i.e., ease of obtaining drugs) is associated with drug initiation and use.”).

11. See SAMSHA2, supra note 2, at 75–76; id. at 76 (noting that approximately

“one in eight youths aged 12 to 17 [] indicated that they had been approached by someone selling drugs in the past month.”).

12. See SAMSHA2, supra note 2, at 6 (“In 2013, 39.0 percent of youths aged 12

to 17 perceived great risk in having five or more drinks once or twice a week. Similarly,

To address these problems, states have implemented drug-free zone

laws (“DFZLs”). Recognizing governmental systems, education centers, and

aspects of the community as “domains of influence” from which to address

illicit drug use by youth,13 DFZLs reflect an effort to reduce the use of

controlled substances by youth and reduce the harms illicit drug activity

poses to such individuals.14 More specifically, this effort has aimed to reduce

the availability (perceived or actual) of such substances and foster protected

environments for youth populations.15

Drug-free Zone Laws

39.5 percent of youths perceived great risk in smoking marijuana once or twice a week. . . . About half (48.6 percent) of youths aged 12 to 17 reported in 2013 that it would be "fairly easy" or "very easy" for them to obtain marijuana if they wanted some. One in eleven reported it would be easy to get heroin (9.1 percent), 11.3 percent indicated that LSD would be easily available, and 14.4 percent reported easy availability for cocaine. In comparison with the rates in 2002, the 2013 rates represent declines in perceived availability for all four of these drugs. About one in eight youths aged 12 to 17 (12.4 percent) indicated that they had been approached by someone selling drugs in the past month, which was similar to the rate in 2012 (13.2 percent).”).

13. SAMSHA1, supra note 1; SAMSHA2, supra note 2, at 71.

14. See THE SENTENCING PROJECT, DRUG-FREE ZONE LAWS: AN OVERVIEW OF STATE POLICIES 1 (2013) http://sentencingproject.org/doc/publications/sen_Drug-Free%20Zone%20Laws.pdf; see also JUSTICE POLICY INSTITUTE, DISPARITY BY DESIGN: HOW DRUG-FREE ZONE LAWS IMPACT RACIAL DISPARITY—AND FAIL TO PROTECT YOUTH 3 (2006) http://www.drugpolicy.org/sites/default/files/SchoolZonesReport06.pdf

15. See THE SENTENCING PROJECT, supra note 14; see also JUSTICE POLICY INSTITUTE, supra note 14.

DFZLs are based on the premise that drug trafficking in certain

locations creates risk factors that pose danger to children.16 To limit youth

exposure to illegal drug activity, lawmakers established protected “buffer

zones” around places where children most likely frequented or were

present.17 In an effort to deter unwanted drug activity, DFZL violators are

subjected to “substantially higher penalties than others who engaged in the

same conduct outside the zone.”18 Proscribed locations under these laws have

included schools and school bus stops, childcare centers, parks, recreation

centers, public housing, and the like.19 For example, a law imposing drug-

free zones might forbid conspiring to or actually possessing, selling, or

manufacturing a controlled substance within a certain distance of proscribed

locales.

The first rudimentary DFZL surfaced as part of the Comprehensive

Drug Abuse, Prevention and Control Act of 1970,20 twelve years before

President Ronald Reagan officially used the term “War on Drugs.”21 By the

16. THE SENTENCING PROJECT, supra note 14.

17. JUSTICE POLICY INSTITUTE, supra note 14.

18. THE SENTENCING PROJECT, supra note 14.

19. See id. passim.

20. JUSTICE POLICY INSTITUTE, supra note 14, at 5.

21. THE SENTENCING PROJECT, supra note 14.

year 2000, the National Alliance for Model State Drug Laws (“NAMSDL”) put

forth a draft analysis finding that all fifty states and the District of Columbia

had adopted DFZLs.22 The laws vary among jurisdictions, with key

distinctions regarding the offenses included, locations covered, zone size(s)

implemented, and penalties imposed under the regulation.23

The implementation of DFZLs has caused unintended effects, creating

concern for policymakers. Research on DFZLs across the nation

demonstrates that the size, population density,24 and demographics25 of a

particular drug-free zone, can negate any deterrent value of the law.26

Specifically, an overly large zone, particularly in a population-dense area, can

fail to drive drug activity away from proscribed locales27 and cause alarming

22. See also id. at 1–2; JUSTICE POLICY INSTITUTE, supra note 14, at 3, 5.

23. THE SENTENCING PROJECT, supra note 14.

24. JUSTICE POLICY INSTITUTE, supra note 14, at 26; see id. at 36; see also THE

SENTENCING PROJECT, supra note 14.

25. JUSTICE POLICY INSTITUTE, supra note 14, at 26 (“Geographic data presented in [New Jersey’s] commission’s report support the argument that geography greatly affects the likelihood that a drug arrest will result in a drug-free zone charge. Just 19 percent of rural arrests take place in drug-free zones compared to 33 percent of arrests in rural centers, 32 percent in the suburbs, 63 percent of arrests in urban suburbs, and 82 percent of arrests in urban centers.”); see also id. at 30, 36.

26. THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY INSTITUTE, supra note 14 passim.

27. See THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY INSTITUTE, supra note 14 passim.

levels of disproportional and disparate impacts on youth offenders28 and adult

offenders.29 This is so despite studies consistently showing that blacks,

whites, and Hispanics use illicit substances at similar rates.30

These findings have shaken the confidence of policymakers in current

DFZLs because these laws have a direct relation to ensuring the safety and

well-being of youth and their surrounding communities. This report focuses

on zone sizes employed under drug-free zone legislation and considers the

unintended policy implications caused by such legislation as demonstrated by

recent statistical data. Through comparative analysis, this report indicates

cause for concern regarding the effectiveness and pragmatic consequences of

Tennessee’s DFZL.

New Jersey

New Jersey was one of the first states to enact its own version of the

federal DFZL, so appropriately, it was the first to seriously scrutinize the

effects of the law.31 The original New Jersey law prohibited distributing,

28. JUSTICE POLICY INSTITUTE, supra note 14, at 21 (noting substantial disparate

impacts in Cook County, Illinois, on minority youth under the state DFZL).

29. See THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY INSTITUTE, supra note 14 passim.

30. JUSTICE POLICY INSTITUTE, supra note 14, at 28 (“Reports from the federal Substance Abuse and Mental Health Services Agency on the prevalence of illicit drug use consistently show that blacks, whites, and Hispanics use at similar rates.”).

31. JUSTICE POLICY INSTITUTE, supra note 14 (noting that New Jersey first enacted a DFZL in 1987).

dispensing, or possessing with intent to distribute drugs within a 1,000-foot

zone around schools.32 Approximately a decade later New Jersey lawmakers

added a 500-foot zone for drug sales around parks, libraries, museums, and

public housing complexes.33

In 2004, the New Jersey state legislature established the New Jersey

Commission to Review Criminal Sentencing to conduct an investigation on

the state’s DFZL and its impacts.34 After a comprehensive analysis of the

DFZL, the Commission found that the law had no deterrent effect: it failed

entirely to drive drug activity away from schools. Additionally, the DFZL

was a major contributor to alarming levels of racial disparity in

incarceration.35 The Commission found that the intended policy purpose of

driving drug activity away from youth and the locales they frequent was

undermined by the fact that many densely populated or developed urban

areas overlapped under the DFZL, which effectively turned entire

32. THE SENTENCING PROJECT, supra note 14, at 5 (noting that “school” in the

statute incorporates daycare centers, vocational training centers, and other educational facilities); see also JUSTICE POLICY INSTITUTE, supra note 14, at 22.

33. THE SENTENCING PROJECT, supra note 14, at 5.

34. JUSTICE POLICY INSTITUTE, supra note 14, at 3, 25; THE SENTENCING PROJECT, supra note 14, at 5.

35. JUSTICE POLICY INSTITUTE, supra note 14, at 3–4.

communities into prohibited zones.36 According to Judge Barnett Hoffman,

chair of the Commission and a presiding county court judge of the Middlesex

County court, “Giant unbroken drug-free zones . . . actually dilute the special

protection the laws are supposed to offer” because such overlapping zones

create “a net so large that we pull in every fish whether it’s the type of fish

we’re looking for or not.”37 The distinction the New Jersey law aspired to

create between drug-free zones and other areas was negated, resulting in no

measurable deterrent effect.

Additionally, New Jersey’s DFZL created an unwarranted racial

disparity because it blanketed densely populated minority neighborhoods

resulting in a “devastating impact on minority defendants.”38 The

Commission labeled this effect of population density on the likelihood of being

arrested and convicted under the state’s DFZL as the “urban effect.”39 The

36. Id. at 4 (“[T]he Commission determined that the laws had failed entirely to

accomplish their primary objective of driving drug activity away from schools and schoolchildren. The Commission found that the law had no measurable deterrent effect and was not being used to sanction individuals that sell drugs to children.”).

37. JUSTICE POLICY INSTITUTE, supra note 14, at 26. 38. THE SENTENCING PROJECT, supra note 14, at 5–6 (“Nearly every defendant

(96%) convicted and incarcerated for a drug-free zone offense in New Jersey was either black or Latino.”); JUSTICE POLICY INSTITUTE, supra note 14, at 14; id. at 26 (“According to the commissioners, the problem stems primarily from the “urban effect” of the law’s current zone configuration. They argue that the enormous racial disparity produced by the schoolzone enhancement is a function of differing population density in communities where the majority of whites and people of color live.”).

39. JUSTICE POLICY INSTITUTE, supra note 14, at 28.

Commission also expressed a concern that the state’s DFZL was exacerbated

by disparate enforcement patterns.40 Upon its findings, the Commission

recommended, as one ameliorative measure, that the legislature shrink the

zone size from 1,000 feet to 200 feet.41 Although the commission’s bill stalled

in the legislature, New Jersey officially recognized some of the inherent

problems with the state’s DFZL when Governor Jon Corzine signed into law a

bill that eliminated mandatory prison sentences for school zone offenses and

enhanced judicial discretion in such cases.42

Massachusetts

Research conducted in Massachusetts also supports the notion that an

overly-large drug-free zone can negate the deterrent value of a DFZL and

result in disproportional impacts for urban, minority communities and

economically disadvantaged segments of the population.43 The General

Assembly of Massachusetts passed its first DFZL in 1989.44 In 2000, when

40. Id. (“While the ‘urban effect’ . . . is a necessary explanation for the laws’

racially disparate impact, it is not a sufficient explanation. . . . Yet even after controlling for population density, blacks are far more likely than whites to be arrested and convicted for drug-free zone offenses. . . . This raises questions about whether the disparities built into the drug-free zone laws are being exacerbated by disparate enforcement patterns.”)

41. THE SENTENCING PROJECT, supra note 14, at 6. 42. Id. 43. JUSTICE POLICY INSTITUTE, supra note 14, at 4. 44. THE SENTENCING PROJECT, supra note 14, at 5.

efforts to reform the law began, the state’s DFZL imposed a mandatory

minimum sentence for convictions of selling or distributing drugs within

1,000 feet of a school zone, day care, or Head Start Facility and 100-feet of a

park or playground.45

Research on the potential effects of the DFZL in Massachusetts was

conducted by multiple institutions, including Northeastern University.46 The

research done at Northeastern University, like other studies, suggests a

sharp disparity in the way DFZLs are enforced.47 Research on

Massachusetts’ DFZL was also conducted at the Boston University School of

Public Health by William Brownsberger, a drug policy expert and former

Assistant Attorney General for Narcotics.48 Brownsberger’s findings speak to

how the size of the zones imposed under the state’s DFZL affects the law’s

intended purpose of deterring drug activity in places children are likely

present.49

45. Id.; JUSTICE POLICY INSTITUTE, supra note 14, at 15.

46. THE SENTENCING PROJECT, supra note 14, at 5; JUSTICE POLICY INSTITUTE,

supra note 14, at 15.

47. JUSTICE POLICY INSTITUTE, supra note 14, at 16 (“Massachusetts sentencing data indicate that 80 percent of defendants that received mandatory, enhanced sentences under the drug-free zone statute are black or Hispanic, even though 45 percent of those arrested for drug violations statewide are white.”)

48. THE SENTENCING PROJECT, supra note 14, at 5; JUSTICE POLICY INSTITUTE, supra note 14, at 15.

49. JUSTICE POLICY INSTITUTE, supra note 14, at 15.

Brownsberger found that the Massachusetts’s DFZL, as promulgated

and enforced, had no deterrent value.50 His research evidenced that, because

the DFZL was drawn too broadly, any incentive to not sell drugs in the

vicinity of locations reasonably perceived to hold youths was negated.51

Moreover, his research demonstrated that the overly broad zones employed

under the state’s DFZL produced disparate impacts because the DFZL

“covered 29% of the three studied cities and 56% of high-poverty areas.”52 To

alleviate the unintentional and negative effects of the law and provide more

efficient means of furthering the policy of the state’s DFZL, Brownsberger

recommended Massachusetts drug-free zones be shrunk from 1,000 feet to

100–250 feet.53

These findings were bolstered in 2009 through a report issued by the

Prison Policy Initiative (“PPI”). PPI’s research, which focused on western

Massachusetts, found that “residents of urban areas were five times as likely

50. Id. 51. Id. 52. THE SENTENCING PROJECT, supra note 14, at 5.

53. THE SENTENCING PROJECT, supra note 14, at 5 (Brownsberger argues that a special penalty to protect children is a good idea, but that the Massachusetts law is drawn too broadly to have that effect. By blanketing large geographic areas with drug-free zones, the law makes it virtually impossible for sellers to avoid them. As Brownsberger puts it, “We’re not giving anyone any incentive not to sell drugs near schools.” He recommends reducing the zone to between 100 to 250 feet.).

to live within a drug-free zone as residents of rural areas [and] that more

than half of black and Hispanic residents lived in drug-free zones while less

than a third of white residents” lived in such a zone.54 As a result of this

research, legislators on Massachusetts’s joint Judiciary Committee approved

a bill that would have shrunk the size of the zones and limited the hours of

their effectiveness, though the bill died on the floor of the general assembly.55

However, with the endorsement of Governor Deval Patrick, the General

Assembly subsequently enacted a law reducing the size of Massachusetts’s

DFZL zones from 1,000 feet to 300 feet and limiting the operation of the

zones from 5 a.m.–midnight.56

Indiana

Research on Indiana’s DFZL also demonstrates that the size of the

drug-free zones imposed by under law can render a law ineffective as a

deterrent and result in disparate treatment. Indiana’s DFZL, first adopted in

1987, increased the felony class of the underlying drug offense if it occurred

within 1,000 feet of school property, a public park, a public housing complex,

or a youth program center.57 In response to rising concerns, both locally and

54. Id. 55. Id. 56. Id. 57. Id. at 4.

nationally, DePauw University implemented a study regarding the impact

and effectiveness of the state law.58 The findings were similar to other

studies on state DFZLs: the law’s effectiveness and deterrent value was

inhibited by the fact that the “drug-free zones blanketed large portions of the

inner city areas in Indianapolis,” and the law produced disproportionate and

disparate impacts on minorities—“more than 75% of defendants who had

their felony class raised under the drug-free zone statute were black.”59 This

research was presented to the Indiana Senate Committee on Corrections,

Criminal, and Civil Matters and the specially-convened Indiana Sentencing

Policy Study Committee.60 The findings were supplemented by disapproval of

the state’s current DFZL by the Indiana Supreme Court in 2012 where the

court signaled it would continue to reduce harsh sentences imposed under the

DFZL.61 In response to these concerns, the Indiana legislatures passed and

Governor Mike Pence signed into law, a bill reforming the state DFZL.62 The

bill reduced Indiana’s drug-free zones from 1,000 feet to 500 feet and

eliminated the zones around public housing complexes and youth program

58. Id. 59. See THE SENTENCING PROJECT, supra note 14, at 4. 60. Id. 61. Id. 62. Id.

centers; it also required that a minor must be reasonably expected to be

present at the time of the underlying offense.63

Tennessee

Tennessee codified its DFZL in Tennessee Code Annotated § 39-17-432.

Upon promulgating the statute the General Assembly articulated a

governmental interest in providing “vulnerable persons [of the] state an

environment in which they can learn, play and enjoy themselves without the

distractions and dangers that are incident to the occurrence of illegal drug

activities.”64 The provision mandates “enhanced and mandatory minimum

sentences [of drug offenses] occurring in a drug-free zone . . . as a deterrent to

such unacceptable conduct.”65 Specifically, any individual who conspires to or

actually manufactures, delivers, sells, or possesses with the intent to

manufacture, sell, or possess drugs66 while “on the grounds or facilities of any

school or within one thousand feet (1,000) of [any proscribed property] is

subject to an enhanced, mandatory minimum sentence.67

63. Id. 64. TENN. CODE ANN. § 39-17-432(a) (2014). 65. TENN. CODE ANN. § 39-17-432(a); see also THE SENTENCING PROJECT, supra

note 14, at 3 (noting that Tennessee Kansas, and Nebraska elevate the felony class of the underlying drug offense when it is committed within a drug-free zone, thereby exposing the defendant to harsher penalties).

66. TENN. CODE ANN. § 39-17-417(a) (2014). 67. TENN. CODE ANN. § 39-17-432(a), (b)(1).

The locations covered by the DFZL include “a public or private

elementary school, middle school, secondary school, preschool, child care

agency, or public library, recreational center, or park.”68 Any violation of

Tennessee Code Annotated § 39-17-417 occurring within this zone will cause

the offender to be punished one classification higher than otherwise would be

imposed.69 The violation also causes a blanket increase of fines for

offenders.70 If the offense occurs within 1,000 feet of a public or private

elementary school, middle school, or secondary school, Tennessee’s DZFL also

triggers increased incarceration.71

Tennessee’s DFZL is similar to the prior statutory scheme of

jurisdictions that investigated and revised their DFZLs. For example,

Tennessee employs a 1,000-foot buffer zone. This is similar to

Massachusetts’s previous DFZL, which employed a 1,000-foot zone and a 100-

foot zone;72 Indiana’s previous DFZL, which imposed a 1,000-foot zone; 73 New

68. Id. 69. Id. 70. See TENN. CODE ANN. § 39-17-432(b)(2), (3). 71. See TENN. CODE ANN. § 39-17-432(b)(3) (“A person convicted of violating this

subsection (b), who is within the prohibited zone of a preschool, childcare center, public library, recreational center or park shall not be subject to additional incarceration as a result of this subsection (b) but shall be subject to the additional fines imposed by this section.”).

72. THE SENTENCING PROJECT, supra note 14, at 5.

Jersey’s former DFZL, which used a 1,000-foot zone and a 500-foot zone; and

Delaware, which previously imposed a 1,000-foot zone.74 Although other

states have recorded problems with their DFZL,75 detailed research and

analysis of the DFZLs in these four states show that 1,000-foot “buffer zones,”

particularly in the presence of certain demographics, are large enough to

negate the laws’ primary purpose of driving drug activity away from

proscribed locations. These findings have already caused other jurisdictions

to reduce their 1,000-foot drug-free zones.76 Moreover, these same

jurisdictions noted disproportional and disparate impacts throughout the

studied communities, which suggests similar concerns for Tennessee.

Additionally, many of the jurisdictions studied, such as in

Massachusetts and Indiana, involved DFZLs that proscribed localities

substantially similar to those covered by Tennessee’s DFZL. For example,

Massachusetts’s DFZL created drug-free zones around schools, day cares,

73. Id. at 4. 74. Id. 75. Id. at 3–4 (noting and discussing Connecticut’s reform on its DFZL); id. at 3,

5 (noting and discussing Kentucky’s reform on its DFZL); id. at 6 (South Carolina modified the triggers for penalty enhancements by requiring “that anyone arrested for a drug offense in an enhancement zone must have knowledge that he or she was in a restricted area with the intent of selling.”); JUSTICE POLICY INSTITUTE, supra note 14, at 21 (noting Illinois’s reform of its treatment of its DFZL in relation to juveniles).

76. See e.g., THE SENTENCING PROJECT, supra note 14, at 4 (noting Delaware’s

reduction in the zone size created by the state’s DFZL).

Head Start Facilities, and parks or playgrounds. Indiana’s DFZL formed

drug-free zones around school property, public parks, youth program centers,

and public housing complexes. Similarly, New Jersey’s DFZL created “buffer

zones” around schools, parks, libraries, museums, and public housing

complexes. Tennessee also proscribes many of the same offenses as the

jurisdictions studied, such as intent to manufacture or sell an illicit

substance.77

Comparative Demographics

According to data collected by the United States Census Bureau,

Tennessee seemingly contains jurisdictions with significantly similar

demographics to states that have discovered significant problems with their

DFZL. The jurisdictional data provided by the Bureau and compared here

considers categories such as population, age, sex, race, nationality, family

and living arrangements, income and poverty, and geography. The studies on

Massachusetts’s prior DFZL included data samples from Hampden County,78

Springfield City,79 New Bedford City,80 and Fall River, City.81 Hampden

77. Compare, TENN. CODE ANN. § 39-17-432, with THE SENTENCING PROJECT,

supra note 14 passim, and JUSTICE POLICY INSTITUTE, supra note 14 passim. 78. THE SENTENCING PROJECT, supra note 14, at 5.

79. Id.; JUSTICE POLICY INSTITUTE, supra note 14, at 15.

80. THE SENTENCING PROJECT, supra note 14, at 5; JUSTICE POLICY

INSTITUTE, supra note 14, at 15.

County, Massachusetts, is significantly similar to Knox County, Tennessee,

in many regards including population, population density, and

demographics.82 Springfield City, Massachusetts, is significantly similar in

demographics to Chattanooga City, Tennessee;83 other demographical

similarities are seen between Fall River City, Massachusetts, and Johnson

City, Tennessee84 as well as New Bedford City, Massachusetts and Franklin

City, Tennessee.85 Significant demographical similarities to Tennessee are

also seen in other jurisdictional studies discussed. For example, Indiana

81. THE SENTENCING PROJECT, supra note 14, at 5; JUSTICE POLICY

INSTITUTE, supra note 14, at 15.

82. See UNITED STATES CENSUS BUREAU, tbl. (2015) http://www.census.gov/quickfacts/table/PST045214/25013,47093 (evidencing substantial similarities between the two jurisdictions in population estimates; age and sex ratios; race and nationality, minus Hispanics and Latinos; housing; families and living arrangements; income and poverty; and geography).

83. See UNITED STATES CENSUS BUREAU, tbl. (2015) http://www.census.gov/quickfacts/table/PST045214/4714000,2567000 (displaying significant similarities between the two jurisdictions in population estimates; age and sex ratios; race and nationality, minus Hispanics and Latinos; housing; families and living arrangements; income and poverty; and geography).

84. See UNITED STATES CENSUS BUREAU, tbl. (2015) http://www.census.gov/quickfacts/table/PST045214/2523000,4738320 (showing significant similarities between the two jurisdictions in age and sex ratios, race and nationality, and income and poverty and evidencing seemingly comparable demographics on population, housing, families and living arrangements, and geography).

85. See UNITED STATES CENSUS BUREAU, tbl. (2015)

http://www.census.gov/quickfacts/table/PST045214/2545000,4727740 (displaying significant similarities between the two jurisdictions in age and sex ratios and evidencing seemingly comparable demographics on population, race and nationality, housing, as well as families and living arrangements).

reviewed its previous DFZL with sample data from Marion County, Indiana,

which is substantially similar to Shelby County, Tennessee.86

Tennessee Research

Direct research on Tennessee’s DFZL is limited in both numbers and

scope. However, research done in a dissertation at the University of

Tennessee statistically analyzed an exhaustive two calendar year list of “drug

offenses eligible for penalty enhancement under [Tennessee’s DFZL].”87 The

research created an accurate model88 with the data and demonstrated that

“classification of race as ‘black’” is one of the five most statistically significant

factors to increase a suspect’s odds of being charged with enhanced penalties

under the state’s DFZL in Knoxville, Tennessee.89

86. See UNITED STATES CENSUS BUREAU, tbl. (2015)

http://www.census.gov/quickfacts/table/PST045214/18097,47157 (evidencing substantial similarities between the two jurisdictions in population estimates; race and nationality, minus Hispanics and Latinos; housing; families and living arrangements; income and poverty and demonstrating significant similarities in age and sex ratios as well as geography).

87. Jordan T. Smith, Dissertation, Equal Protection Under the Law? Examining

Tennessee’s Drug Free School Zone Act (TNDFSZA), University of Tennessee Honors Thesis Projects, 19 (2012) http://trace.tennessee.edu/cgi/viewcontent.cgi?article=2534&context=utk_chanhonoproj (analyzing a total of 2,031 case list compiled by the City of Knoxville for cases dating from January 2010 to December 2011).

88. Id. at 30 (discussing how the model created predicts “whether or not a

[Tennessee] suspect is charged with enhanced penalties” under the States DFZL with 89.7% accuracy).

89. Id. at 34–35 (finding that under the applied model, being “black” raises the

odds a suspect will be charged under Tennessee’s DFZL by a factor of roughly 6.5). But see

Although specific evaluations of or research on Tennessee’s DFZL is

limited, Tennessee’s legal community has expressed concern regarding the

effectiveness of the DFZL, especially given the size of the “buffer zones”

imposed under the law. Tennessee attorney Vincent Wyatt voiced his

concern regarding the overly broad nature of the zones when he stated, “As

one can imagine, in Nashville and other cities[,] this 1,000 feet boundary line

can encompass almost an entire urban area.”90 Wyatt is not alone, Susan

Shipley, an attorney in Knoxville, Tennessee, expressed concern regarding

disproportional and disparate impacts of Tennessee’s DFZL when she stated,

"The disparity we're seeing [from Tennessee’s DFZL] is something the (U.S.)

Justice Department needs to look into.”91 These are just a few of the concerns

id. at 36–37 (noting that prior criminal history is an unaccounted variable not taken into consideration in this finding that could, but unlikely, affects the statistical findings).

90. Vincent Wyatt, Drug Free School Zones Raise Stakes in Nashville,

Tennessee, AVVO, (Jan. 11, 2012) (quoting Nashville, Tennessee attorney Vincent Wyatt) http://www.avvo.com/legal-guides/ugc/drug-free-school-zones-raise-stakes-in-nashville-tennessee (“As one can imagine, in Nashville and other cities this 1000 feet boundary line can encompass almost an entire urban area. There is no requirement that the drug activity occur during school hours. Many cases stem from instances where individuals are simply driving down a major street. One might wonder if this was really the intent of the legislature, but regardless of that no one can question that the laws raise the stakes on almost every felony drug case in Nashville.”).

91. Jamie Satterfield, 82% of Drug-zone Defendants are Black; Lawyer Sees

‘Gross Disparity,’ KNOXVILLE NEWS SENTINEL, (Nov. 12, 2010, 12:00 AM) (quoting Knoxville, Tennessee attorney Susan Shipley) http://www.knoxnews.com/news/local-news/82-of-drug-zone-suspects-are-black (noting that DFZLs cause "a gross disparity," and that "[t]he disparity we're seeing here is something the (U.S.) Justice Department needs to look into").

expressed by Tennessee’s legal community regarding the state’s DFZL.92

Ultimately, the concern expressed93 questions the effectiveness and practical

implications of Tennessee’s DFZL, and in light of wide spread data on the

topic, this concern is anything but a chimera.

Cause for Concern and Legislative Action

Research and statistical data clearly demonstrate a recent recognition

by states of the need to review and tailor DFZLs to meet each jurisdiction’s

specific needs. Findings have demonstrated that the “buffer zones” employed

under these laws, when not adequately tailored, have rendered the primary

deterrent value of the law ineffective and have caused significant disparate

impacts on minorities94 and lower-income classes.95 Many states, including

those with localities similar to Tennessee, reviewed their DFZLs, found

92. See also, State v. Peters, No. E2014-02322-CCA-R3-CD, 2015 Tenn. Crim. App. LEXIS 889, at *36–43 (Nov. 5, 2015) (McMullen, J., dissenting) (providing insight into discontentment with Tennessee’s DFZL by the state’s judiciary and legal community).

93. James Nix, What Drug-free School Zones Do for Cops, Criminals, THE CITY

PAPER, (Nov. 12, 2010, 3:55 PM) (quoting assistant public defender from Nashville, Tennessee, Melissa Harrison) http://nashvillecitypaper.com/content/city-news/what-drug-free-school-zones-do-cops-criminals (“Harrison points out there are no safeguards to preventing police from intentionally stopping someone in a school zone, and “the other thing is that almost anywhere is within 1,000 feet of a school.’”); see also Russell F. Thomas, Know More About the Tennessee Drug Free School Zone Act, ARTICLESNATCH, (quoting Nashville, Tennessee attorney Russel F. Thomas) http://www.articlesnatch.com/blog/Know-More-About-The-Tennessee-Drug-Free-School-Zone-Act/1709617#gsc.tab=0 (last visited Nov. 20, 2015).

94. THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY

INSTITUTE, supra note 14 passim. 95. JUSTICE POLICY INSTITUTE, supra note 14, at 4.

significant unwanted effects, and made beneficial changes to their law.

These reforms are brought about by the hard-work and determination of

state congressional bodies,96 judicial bodies,97 executive bodies,98 research

institutions or groups, the legal community, and others. Similar movements

and efforts continue to occur throughout the nation, indicating a modern

trend towards re-evaluating the current state of DFZLs.99

Report Suggestions

For the aforementioned reasons, Tennessee policymakers should

exercise care and concern regarding the effectiveness and potential

implications of their state’s DFZL. The similarities between jurisdictions

who have discovered negative effects of their DFZLS are not quite distinct

from Tennessee. This report suggests reducing the size of the “buffer zones”

96. THE SENTENCING PROJECT, supra note 14 passim; JUSTICE POLICY INSTITUTE, supra note 14 passim.

97. See, e.g., JUSTICE POLICY INSTITUTE, supra note 14, at 26 (discussing the

efforts of Judge Barnett Hoffman, a presiding judge of the Middlesex County court). 98. See, e.g., THE SENTENCING PROJECT, supra note 14, at 4 (discussing the

efforts of Governor Mike Pence); id. at 5 (discussing the efforts of Governor Deval Patrick); id. at 6 (discussing the efforts of Governor Jon Corzine).

99. See THE SENTENCING PROJECT, supra note 14, at 3–4

http://sentencingproject.org/doc/publications/sen_Drug-Free%20Zone%20Laws.pdf (“Further reforms may soon be enacted. In the 2013 legislative session, Connecticut’s Black and Puerto Rican Caucus sponsored a bill that would have reduced the size of the state’s drug-free zones from 1,500 feet to 300 feet. The bill was debated in the Connecticut House of Representatives but Republican opponents succeeded in filibustering the bill and its time expired without a vote. As a result, the bill stalled and will not become law for 2013. Nevertheless proponents of the bill have vowed to introduce it again in the next legislative session.”).

under Tennessee’s DFZL, removing the buffer zones around “recreational

centers,” and avoiding the creation of buffer zones around “public housing.”

At the very least, in the interest of justice, this report urges a state

congressionally led evaluation of Tennessee’s DFZL to ensure the

effectiveness and value of the legislation.

West Tennessee Drug-Free Zones