School Zone Case Analysis

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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.

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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.

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David Ziemer can be reached by email.