Commonwealth v. Lawrence

Brown, J.

(concurring in the result). Although it appears that there is sufficient evidence to establish beyond a reasonable doubt that the defendant possessed and distributed a controlled substance, I reluctantly concur in affirming the defendant’s conviction for possession of that substance within a school zone.

The defendant’s second claim of error is framed as a failure to give an entrapment instruction. While entitlement to an entrapment instruction usually requires evidence of persistent and repeated conduct on the part of the government agent, see Commonwealth v. Miller, 361 Mass. 644, 652 (1972), the strict liability school zone offense is not a typical crime. If a defendant intends the distribution, and whether by inadvertence or inten- *605 tian the distribution occurs within a school zone, the case is an ordinary school zone case. Here, however, the detective was conducting an undercover narcotics operation, and was highly experienced in his trade. He knew that the defendant did not go to the school zone to smoke marijuana but, to the contrary, would go elsewhere. The detective led the defendant to the school zone, and it was predominately his acts, not those of the defendant, that made for an enhanced penalty offense. 1

The school zone statute provides that “[ljack of knowledge of school boundaries shall not be a defense to any person who violates the provisions of this section,” G. L. c. 94C, § 32J, thus permitting the imposition of strict liability for drug offenses occurring within 1,000 feet of a school. See Commonwealth v. Klusman, 46 Mass. App. Ct. 919, 920 (1999). While the Supreme Judicial Court has held that the theory of “sentencing entrapment” should not be considered by a fact finder in determining whether a defendant was entrapped into selling a greater quantity of narcotics than he allegedly otherwise would have sold in order to increase the severity of his sentence, see Commonwealth v. Garcia, 421 Mass. 686, 692-693 (1996), our courts have never decided whether the entrapment defense could be applicable in a case, such as this, where a defendant is led into a particular strict liability offense. 2 I believe that had such an instruction been requested specifically here, the defendant would have been entitled to it.

Moreover, in his memorable speech to United States Attorneys, Justice Jackson, when he was the United States Attorney General, cautioned against the great “danger of abuse of prosecuting power.” Morrison v. Olson, 487 U.S. 654, 728 *606 (1988) (Scalia, J., dissenting), quoting from R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940. In the instant circumstances, even if an entrapment instruction had been allowed, I believe that an enlightened prosecutor should not have sought a conviction for the school zone offense. A government official (i.e., police officer) induced the defendant to enter a danger zone that exposed him to an enhanced penalty. This conduct is particularly outrageous because the young man went along with an experienced police officer, who undoubtedly was aware of the consequences of drug activities ip a school zone.

This case is made all the more troubling by the fact that because of the government’s actions, a teenage defendant with no known involvement in drag sales other than this isolated incident, and for whom there is no indication of drug use other than marijuana, was subjected to a greatly enhanced penalty, including incarceration for two years, due to his conviction under G. L. c. 94C, § 32J. Possible collateral consequences of conviction faced by this young defendant may be substantial. “[Sjociety has created a vast network of collateral consequences that severely inhibit an ex-offender’s ability to reconnect to the social and economic structures that would lead to full participation in society. These structural disabilities often include bars to obtaining government benefits, voting disenfranchisement, disqualification from educational grants, exclusion from certain business and professional licenses, and exclusion from public housing.” Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry, 45 B.C. L. Rev. 255 , 258 (2004) (footnotes omitted).

In closing, I recommend that prosecutors read the full text of Justice Jackson’s remarks; I also think that trial judges have some responsibility not to be a part of what appears to be an unconscionable prosecution.

The defendant had become acquainted with the detective two or three weeks prior to the date of the event giving rise to the school zone violation at issue.

Courts in other jurisdictions have found that strict liability crimes do not preclude an entrapment instruction. See, e.g., Albaugh v. State, 721 N.E.2d 1233, 1236 (Ind. 1999) (entrapment defense applicable to strict liability crime of operating a vehicle while intoxicated); Kansas v. Swafford, 20 Kan. App. 2d 563, 567-568 (1995) (though there was no “outrageous government conduct” as matter of law, this defense, which is “an offshoot of entrapment,” could be applicable to a school zone charge); Louisiana v. Williams, 822 So. 2d 780, 784-785 (La. App. 2002) (though defendant failed to prove that he was entrapped into selling cocaine within a drug-free school zone, the defense could be raised to this charge).