School Zone
Case Analysis
Jan.
22, 2007
Remarkably,
this is the first case to address the constitutionality of sec.
939.632, even though the constitutionality of certain provisions
is dubious, and the statute has been in effect since 1995.
Prosecutors
have either been loathe to make full use of the enhancer, or have
used it merely for leverage to induce guilty pleas, either by
threatening to amend complaints to add the enhancement, or charging
enhancements but dismissing them in exchange for guilty pleas.
With
a published court decision upholding the statute, however, that
could change.
On
its face, the statute is not reasonably subject to constitutional
attack. If a defendant takes hostages on the premises of a school,
in violation of sec. 940.305, commits a kidnapping on school premises,
in violation of sec. 940.31, or abducts a child, in violation
of sec. 948.30, it would be frivolous to argue that the penalty
enhancement violates the Equal Protection Clause.
However,
as written, the statute includes any battery, even if it occurred
at closing time on a weekend over the summer, provided it was
within 1,000 feet of “any school building, grounds, recreation
area or athletic field or any other property owned, used or operated
for school administration.”
In
a concentrated city such as Milwaukee, that encompasses most of
the residential geographic area, and adds five years to any felony
battery, or three months if it is a misdemeanor, even if the crime
has no connection to the school or children.
In
such a case, a defendant could distinguish this case, and argue
that the statute is unconstitutional as applied to him.
The
court noted, “the domestic violence ‘charges’ in
this case did not relate to stand-alone crimes,” but included
solicitation of homicide. Thus, in a garden-variety battery case,
the case could be distinguished.
The
statute also applies to burglary, sec. 943.10. As with a routine
battery, a defendant charged with burglary in a school zone could
raise a plausible as-applied challenge, if it occurs at a time
when no schoolchildren would reasonably be present.
Finally,
the statute also applies to operating a motor vehicle without
the owner’s consent (OMVWOOC), sec. 943.23. In a city such
as Milwaukee, it would be literally impossible to drive for any
distance without coming within 1,000 feet of a school zone at
some point. Adding five years to a sentence for OMVWOOC, merely
because the defendant was within 1,000 feet of a school when he
happened to be arrested is pretty arbitrary.
Of
course, the same arguments are true of the enhancement for selling
drugs in a school zone, the constitutionality of which is longstanding.
Nevertheless,
the two can be distinguished in some cases.
In
State v. Hermann, 164 Wis.2d 269, 284-85, 474 N.W.2d 906 (Ct.App.1991),
the court could reasonably conclude that, because selling drugs
makes the whole neighborhood more violent and dangerous, “the
fact proved (the proximity to school premises) is rationally related
to the ultimate fact presumed (particular harm to children).”
The
same cannot reasonably be said of a routine battery.
Even
in a routine battery, however, other language by the court suggests
that the statute would withstand an as-applied challenge. The
court wrote, “children’s preoccupation and worry is
no doubt magnified when a violent event happens in an area with
which they [are] familiar, such as their school, because their
ability to visualize the area makes the threat more concrete to
them.”
The
same can be said in any case, and used to justify application
of the enhancer, no matter how attenuated the crime may be from
any actual children.
So,
while some of the court’s language could be used to distinguish
this case in less egregious cases, other language is broad enough
to defeat any as-applied challenge.
Click here for
Main Story.
David
Ziemer can be reached by email.
