Valparaiso University Law Review Volume 47 Number 3 Spring 2013 pp.89-129 Spring 2013 Deconstructing Carmona: The U.S. War on Drugs and Black Men as Non-Citizens Brian G. Gilmore Reginald Dwayne Betts Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Brian G. Gilmore and Reginald Dwayne Betts, Deconstructing Carmona: The U.S. War on Drugs and Black Men as Non-Citizens , 47 Val. U. L. Rev. 89 (2013). Available at: https://scholar.valpo.edu/vulr/vol47/iss3/4 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Gilmore and Betts: Deconstructing Carmona: The U.S. War on Drugs and Black Men as N DECONSTRUCTING CARMONA: THE U.S. WAR ON DRUGS AND BLACK MEN AS NON- CITIZENS Brian G. Gilmore* Reginald Dwayne Betts** I. COLONIAL CITIZENS AND THE U.S. WAR ON DRUGS The Negritude movement poet, Aimé Césaire of Martinique, wrote in his book, Discourse on Colonialism, “A civilization that proves incapable of solving the problems it creates is a decadent civilization.”1 Césaire, at the time, was critiquing colonial rule of Europe over developing societies all over the world and had declared that Europe was “stricken” and “dying” as a civilization due to its tactics to maintain that rule.2 Europe’s problem was the working class (the workers) of these nations and the inability and unwillingness to resolve the issue.3 For purposes of our discussion below, Césaire’s analysis is relevant because of the current criminal justice system policy that has incarcerated over one million black men at the present time and over two million citizens overall.4 While some contend that these black men violated federal and state controlled substances laws and should be incarcerated, this viewpoint lacks thoughtful analysis. * Clinical Associate Professor of Law at Michigan State University College of Law and poet. I would like to personally thank my co-author and fellow poet Reginald Dwayne Betts for his contribution to this Article. I would like to also thank the Valparaiso University Law School for the opportunity to participate in a unique and very important symposium. Finally, I especially would like to thank my colleagues at MSU: Professor Brian C. Kalt, Professor Michael Lawrence, Professor Glen Staszewski, and all the other participants from the faculty and teaching staff who attended the MSU COL Summer Research workshop 2013 for a final presentation of this Article and who offered comments. ** Reginald Dwayne Betts is author of the collection of poems Shahid Reads His Own Palm and the memoir A Question of Freedom. In 2012, President Obama appointed Mr. Betts to the Coordinating Council of the Office of Juvenile Justice and Delinquency Prevention. He is a first year law student at the Yale School of Law. 1 AIMÉ CÉSAIRE, DISCOURSE ON COLONIALISM 31 (Joan Pinkham trans., Monthly Review Press 2000) (1955). 2 Id. 3 See id. (“‘Western’ civilization . as it has been shaped by two centuries of bourgeois rule, is incapable of solving two major problems to which its existence has given rise: the problem of the proletariat and the colonial problem . .”). 4 See infra Parts II–IV (analyzing the effects of the criminal justice system on African- American males); see, e.g., Jeanne Bishop, Where the Rubber Meets the Road: Injecting Mercy into a System of Justice, 47 VAL. U. L. REV. 819 (2013) (discussing the disparate impact of the war on drugs on African Americans as illustrated by her experiences as a public defender in Cook County, Illinois). 777 Produced by The Berkeley Electronic Press, 2013 Valparaiso University Law Review, Vol. 47, No. 3 [2013], Art. 4 778 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 47 In this Article, we present a fresh analysis of the current U.S. drug sentencing policy and the possible solutions to dismantling the institution with or without significant governmental commitment. Yet, our goal is not to propose policies that will address the controlled substance abuse problem in the United States. Our goal is to bring the current drug war to an end with or without the dismantling of the policies that have perpetuated the “war on drugs” for the last forty years. We present our analysis and our recommendations for action in the spirit of the poet Aimé Césaire’s statement on colonialism, because the war on drugs has again rendered many black men “colonial” citizens within their own country. Their basic rights as U.S. citizens are diminished, their desire to live a constructive existence is perhaps forever challenged, and rights that were fought for over the centuries are removed as a result of a conviction for possession of controlled substances. By focusing upon current drug enforcement policy and a failed federal habeas corpus challenge, known as Carmona v. Ward, it is our intent to demonstrate the destructive nature of the war and how it should have been avoided. In Part II, this Article discusses the war on drugs and how it has been executed over the past forty years.5 Specifically, Part II addresses the war on drugs and its effect on African Americans and their communities.6 This includes a discussion of drug enforcement policy in New York—the legal template for many of the draconian laws across the nation.7 Part III examines the holding in Carmona v. Ward, as well as the political aspects of the case, in order to consider what might have happened had the policy of the last forty years not been pursued.8 Finally, in light of the continuing failures to undo the laws and the policy, Parts IV and V of this Article consider the future and what needs to be done to reverse policies that have rendered black men as colonial citizens in their own country in the twenty-first century.9 II. THE WAR ON DRUGS While this Article focuses on the case of Carmona v. Ward and the drug enforcement policy in New York that brought about that legal 5 See infra Part II (outlining the history and enforcement of the war on drugs). 6 See infra Part II.A (detailing the number of African Americans incarcerated for drug offenses). 7 See infra Part II.B (describing how Rockefeller implemented various drug programs to fight the war on drugs). 8 See infra Part III (commenting on the history and effects of Carmona v. Ward). 9 See infra Parts IV–V (detailing the authors’ views of needed changes to drug policies). https://scholar.valpo.edu/vulr/vol47/iss3/4 Gilmore and Betts: Deconstructing Carmona: The U.S. War on Drugs and Black Men as N 2013] Deconstructing Carmona 779 action, it is still important to place current U.S. drug enforcement policy in the proper context. This Article begins by providing a brief summary of the effects of overall drug enforcement policy in the United States. Much of this policy and its statistical outcomes are quite well known. A. The Persistent War on Drugs For starters, since 1914, the United States has for the most part promoted a prohibition approach to controlled substances. It was that year that the United States, motivated and influenced by Christianity, outlawed “cocaine, heroin, and related drugs.”10 The law, known as “the Harrison Act,” was a radical change in social policy in the United States towards controlled substances.11 It was at this time as well that the government made a commitment to the enforcement of these laws by creating the Federal Bureau of Narcotics.12 In 1937, marijuana was added to this list of substances through the passage of the Marihuana Tax Act.13 Marijuana was not illegal, but it did require a tax for usage of the substance.14 Failure to pay the usage tax could result in a fine or even prison time.15 Since this original effort to curtail certain controlled substances, government policy has not wavered. Drug enforcement has focused on prohibition, incarceration, and punishment. All U.S. Presidents since the time of the Harrison Act have maintained this initial effort. In 1971, President Richard Nixon declared “war” on drugs, and not much later President Ronald Reagan did the same. Mr. Reagan’s successor, his former Vice-President, George H.W. Bush, declared war on drugs on national television, and Bill Clinton, while he did not routinely engage in moments of dramatic rhetoric regarding drug enforcement policy, still pursued the same policy.16 Our final two presidents, George W. Bush and Barack Obama, maintained the same policies towards controlled substances, though Mr. Obama might 10 Harrison Narcotic Act of 1914, Pub. L. No. 63-223, 38 Stat. 785, repealed by Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801–971 (2006). 11 Id. 12 HOWARD PADWA & JACOB CUNNINGHAM, ADDICTION: A REFERENCE ENCYCLOPEDIA 74 (2010). 13 Id. at 75; see Marihuana Tax Act of 1937, Pub. L. No. 75-238, 50 Stat. 551 (1937), repealed by Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801–971 (2006). 14 PADWA & CUNNINGHAM, supra note 12, at 74–75, 107. 15 Id. at 107. 16 Id. at 77, 107, 113, 259–60. Produced by The Berkeley Electronic Press, 2013 Valparaiso University Law Review, Vol. 47, No. 3 [2013], Art. 4 780 VALPARAISO UNIVERSITY LAW REVIEW [Vol. 47 be the first administration to actually refer to illegal drugs as a public health issue.17 The by-product of the decades of prohibition is fairly predictable.