Attorneys poke holes in North York's 'drug-free school zone' plan


Local attorneys poked holes in North York's idea to make the entire municipality a "drug-free school zone," saying it's redundant and doesn't make much legal sense.

In its monthly meeting Tuesday, the borough's council will continue discussing a pair of ideas proposed last month by Mayor Jerry Duncan. Duncan's plan, which he said received broad support from the council and most of the people attending the meeting, could create two new ordinances.

One would prevent stores in the borough from selling items such as rolling paper and glass pipes that can be used as drug paraphernalia, while the other would turn the entire borough into a "drug-free zone," which would draw on a state law that created areas of heightened punishment for drug-dealing offenses around schools and parks.

The latter, a move borough officials hope would scare dealers away from the borough because anyone convicted of selling drugs there would face much harsher penalties than in other locations, has caught some attention.

The state crime code stipulates that anyone caught dealing drugs within 1,000 feet of a public, private or parochial school or within 250 feet of a place with a recreation center or playground — or convicted in the same area of possession of drugs with the intent to sell them — faces a mandatory minimum sentence of two years in prison and a maximum of four years behind bars.

Duncan estimates the little borough, with a population of less than 2,000 packed into just .3 square miles, has "six or seven" churches, as well as a park, a culinary school and the Lincoln Intermediate School's York Learning Center. Because of the borough's size, Duncan thinks the distance around the those buildings would cover just about the whole borough.

"We're going to make it as difficult and miserable to do that in North York as we're legally allowed to," Duncan said.

The problem: But that's the issue: Local lawyers say this approach runs into several legal problems.

York County chief deputy prosecutor Dave Sunday said he's glad to see Duncan trying something "outside the box" to try to fight North York's drug problem, which he said is as bad as anywhere in the county.

But he and other lawyers point out a fundamental issue in the drug-free zone plan: The mandatory sentence for selling drugs in such an area doesn't exist anymore.

Because higher courts have ruled that the way mandatory minimum sentences had been handled is unconstitutional, the mandated two-year minimum penalty no longer applies, Sunday said — right now, there is no additional penalty prosecutors can seek for people accused of dealing drugs in a school zone.

Scott McCabe, a local private-practice attorney who used to work as an assistant district attorney prosecuting drug cases in York County, said much the same.

"If you deliver kilos of cocaine in a parking lot of a school or in a field miles away, there's likely no real difference," McCabe said.

There's also a more minor technical problem, rendered almost moot by the larger issue.

The school zone is automatically in effect around all the areas the law applies it to; the municipality doesn't have to pass an ordinance to create "drug-free" zones around schools — the state law that spells out what they are already does that, McCabe said.

And further, he said, it's unlikely the municipality would be able to extend the zone beyond the limits spelled out in state law.

That would be municipal law superceding state law, he said, which isn't allowed.

Philosophical objections: Local criminal-defense attorney Dawn Cutaia voiced the same legal objections to the law, but she also took issue with it on a philosophical level — she thinks it wouldn't work in pushing drug dealers out of North York.

"Drug dealers don't think like that," she said, saying everyone assumes he or she will be the one who won't get caught. "They're breaking the law to begin with; you could give 'em the death penalty for dealing near schools and that wouldn't change anything."

She said as long as there's the demand for drugs in North York, people will continue to sell them there.

"It's stupid, and it's a waste of the breath spent talking about it," Cutaia said of the drug-free school zone proposal.

Sunday didn't share the same opinion. He said Duncan's theory isn't a bad one: If punishments in North York were much more severe than the surrounding area — and the borough made that fact widely known — Sunday believes many drug dealers would avoid it.

"I think it certainly would keep some people out of the borough," said Sunday, who oversees the county's drug prosecution unit and co-chairs the York County Heroin Task Force. "You would be amazed at how savvy some of the drug dealers are."

After all, some judges will sentence a first-time drug dealer to as little as no time behind bars — just probation. That's a big enough difference from two to four years in state prison to make a difference, Sunday believes.

Police: Duncan said he'd brought his ideas up at a commission meeting of Northern York County Regional Police, which covers the borough, and got a more positive response.

"When I ran it past Chief (Mark) Bentzel, he said he'd be very much in favor of it," Duncan said.

No one from the department could be reached for comment.

When reached by phone on Saturday, borough council president Vivian Amspacher declined to comment, other than to say Tuesday's meeting will likely provide more answers and details. Vice president Rick Shank didn't respond to a message seeking comment.

Duncan said the borough's solicitor was to review his ideas to see if ordinances can be crafted in a way that's consistent with state law; Duncan expects to hear information from the solicitor in Tuesday's meeting.

At some point, this idea might be a better one, Sunday said. He's hopeful that eventually the Legislature might add some heightened penalties — ones that are ruled constitutional — back to the drug-free school zone law.

"I think he should be applauded for trying to do something to better his community," Sunday said. "It just kinda saddens me that we don't have the ammunition to make that happen."

— Reach Sean Philip Cotter at