In Berkshire County, Massachusetts, reputed rock-ribbed bastion of enlightened lifestyles, you can go to jail for two years for an offense that's the equivalent of a speeding ticket, especially if you are a foolish teenager, and have never had another offense. That's how it works under the regime of power-crazed District Attorney David F. Capeless whose taste for being both prosecutor and judge -- and therefore being the dictator of punishment -- is expressed in a fanatical devotion to mandatory sentencing laws and an unbalanced relish for inflicting prison terms on unsuspecting pot smokers careless enough to swap a bit of their personal stash with an undercover cop.
It goes down this way: on a warm summer day in June two years
ago, 17-year-old Mitchell Lawrence, having just completed his
junior year at Monument Mountain Regional High School, gets up
mid-morning, puts on shorts, a blue T-shirt, and sneakers, grabs
his bike and pedals the 12 miles from his home in the tiny hilltown
of Otis to the center of the village of Great Barrington. As
he does several times a week, he's heading to the parking lot
next to the movie theatre and behind Main Street stores where
he regularly meets friends.
As an air-headed teenager, he doesn't think about eating breakfast because most of the food in the fridge are things he doesn't particularly like anyways. And as an air-headed teenager, he forgets to bring any money with him. In his shorts pocket, though, he does have a couple of joints worth of marijuana and his pipe.
When he gets to the Taconic Parking lot around noon, he hooks up with a couple of friends, and they take a stroll up the ramp by the Triplex movie theatre, cross upper Railroad Street, and slip into the obscurity of the bushes around the tracks.
What he and his friends don't know is that under orders from District Attorney Capeless, the Berkshire County Drug Task Force had mounted a four-month sting operation in that parking lot, complete with surveillance cameras, a command post, an undercover agent, and roving SUVs to trail the agent. -- firepower and paraphernalia worthy of a big city bust.
The merchants had been complaining again about loitering groups of adolescents. And law enforcement had been under pressure from the media to crack down on hard drug trade, especially heroin. Why not kill two birds with one stone by staking out the Taconic parking lot, a popular town meeting ground.
What Lawrence also doesn't know is that the lot is within 1,000 feet of a church preschool, allowing the district attorney to deploy his harshest prosecutorial weapon, selling a controlled substance within a school zone, vacant and dormant though the school may have been, a charge that carries a two-year minimum mandatory prison sentence if the district attorney chooses to apply it.
When Lawrence with his pals get back to the parking lot, high on grass, he seees a familiar face, a guy he knows as Jose who's been hanging out with the kids a lot lately. He's older -- about 30 -- Puerto Rican, muscular and intimidating. He's also, in reality, Detective Felix Aguirre, employed by the Drug Task Force, a veteran from the urban drug wars in Springfield, the state's third biggest city and one of its poorest. He's been ordered to purchase drugs as many times as he can from individuals he spots among the kids spending time in the parking lot -- and particularly to secure multiple buys from the same person, providing a better case for the charge of dealing within a school zone.
"Jose" has already picked out Lawrence as an easy mark: shy and diffident, and an obvious pothead. He's just the one to help him meet his quota.
"Hey, have any smoke?" Jose says to Mitchell. "Let's go for a walk."
Lawrence thinks they're going to smoke a few bowls. Jose has other ideas. The youth follows the older man out of the lot, and up a side street to a parked car that's discreetly hidden by a tree.
"Got any smoke?" Jose asks again. Lawrence pulls out his nearly empty baggie. "I'll give you 20 for it," Jose says.
Lawrence hesitates -- it's more money than it's worth -- but he says, "OK." He hands over the pot and takes the $20 bill. He thinks to himself, "I'm starved. Now I can get a burrito at La Choza." But he's uneasy. It's the first time he's ever sold any grass outright, rather than sharing. It doesn't feel right. And later that summer, when Jose asked again, Lawrence turns him down.
In fact, that was the only transaction for money Mitchell Lawrence did that summer, in the four months of an undercover sting that was designed to lure kids into selling, if that was what they had a mind to do. Nor had he ever been charged for any other offenses.
It is not surprising, therefore, that Mitchell Lawrence was astonished and frightened one September morning when, while taking a shower, he heard someone pounding on his parents' front door. He wrapped himself in a towel, and peeked out the window. There were no cars in the driveway or on the road, but seven or eight men were walking around on the lawn down below. He quickly put on his clothes, and went downstairs. The pounding on the door resumed. They did not identify themselves. He went to the sliding door on the back deck. There as a man there who beckoned to him. He opened the door a crack, and the man said, "Are you Brian Babcock?"
"No," said Lawrence. The man did not say who he was, nor did his clothes identify him. Lawrence was scared now.
"Are you Mitchell Lawrence?"
He opened the door a little more, and the man pulled him out by his collar. The others surrounded him. He was handcuffed and told he was under arrest for selling drugs in a school zone. A police van showed up, and Lawrence was taken off to the Great Barrington Police Station for booking.
A year and a half later, Mitchell Lawrence was put on trial,
on a bitter cold week in March.
The matter was, therefore, decided on the narrow grounds of whether a transaction, as defined by the law, had in fact taken place. The jury found Lawrence guilty, and he was sentenced to two years in jail. He was conveyed immediately to prison. He will not be finishing his senior year at Monument Regional High School.
One of Lawrence's friends, B.J. Crandall of Otis, had attended the three-day trial to show his support. He could not believe the outcome.
"This is totally retarded," he said, as sheriff deputies marched his friend out of court in cuffs.
With their mandatory two-year minimum sentences that do not allow judges any discretion, school zone drug dealing laws are meant to discourage real drug dealers from preying upon innocent children. But even the prosecutor conceded in court that Mitchell Lawrence was not a drug dealer. So in this case, just exactly who was this arrest meant to protect? Children two blocks away in a preschool that wasn't in session? Hardly.
But if not them, then who is the actual victim? In a cruel twist of fate, Mitchell Lawrence turns out to be the victim, for the real predator here is District Attorney Capeless. He did not have to apply the enhanced school zone charge but for motives of his own -- personal perhaps or to enhance his political career -- who knows -- he decided to. And he continues to do so in similar first-offender cases.
Instead of pursuing the cruelest of penalties, Capeless might have used the authority of his office to advocate for education and treatment, for rehabilitation that included intense community service for situations such as Lawrence's. But Capeless scoffs at such programs, declaring that the only treatment for drug dealers -- though his office says Lawrence isn't a drug dealer -- is prison time.
There's been some talk among a grassroots organization, Concerned Citizens for Appropriate Justice, of finding a candidate to oppose Capeless in the November election. So far, they can't get a commitment from anyone who has the determination to bring Capeless to account for this tragic travesty of justice -- and for future travesties.
He is the only district attorney in Massachusetts who applies minimum mandatory sentences against first-offender, small quantity marijuana cases. Other DA's find this tactic deplorable and excessive. Besides, it hasn't worked. Pot smoking hasn't declined a whit. But the political machine of which Capeless is a member in good standing, is formidable, the legal community is complacent.
And there's been some talk of changing the law itself, as other states have done, because it is ineffective and unfair, a conclusion reached by a comprehensive study conducted by the Boston University School of Public Health. But in an election year, so far there isn't a Berkshire legislator courageous enough to call for re-examination of minimum mandatory sentencing laws for first-time school zone drug offenses.
In the meantime, Mitchell Lawrence is in prison, committed to the school that produces real criminals, and has become another notch on the gunbelt of a prosecutorial zealot and hitman.
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