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 Brian G. Gilmore and Reginald Dwayne Betts

Excerpted from: Brian G. Gilmore and Reginald Dwayne Betts,  Deconstructing Carmona: the U.S. War on Drugs and Black Men as Non-citizens, 47 Valparaiso University Law Review 777-817, 804-815 (Spring, 2013) (226 Footnotes)

BrianGilmoreThe reconfigured goal, in our opinion, should not be to rid society of illegal substances or controlled substances. This is one of the big mistakes of the war on drugs and controlled substance policy in the United States since 1914, when prohibition was first implemented. Our goal is to address the issue of the war on drugs and how it impacts the lives of African-American men with legal and/or sociopolitical advocacy and direct assistance on a variety of levels. It is our contention that African-American men, entangled in the criminal justice system under the auspices of the war on drugs, have been rendered colonial citizens in their own country. This assertion is made by the evidence presented in the number of black men who are incarcerated and who continue to be incarcerated under the current criminal justice policy in the United States.

*805 While the efforts to address substance abuse in the United States might actually have a good foundation, the results state otherwise. As the poet Aimé Césaire might have noted: what has happened to a segment of the African-American population is neither "evangelization," a "philanthropic enterprise," a "desire to push back the frontiers of ignorance, disease, and tyranny," "a project undertaken for the greater glory of God," nor is it "an attempt to extend the rule of law." The system, despite its professed intent, is a very destructive program of criminal justice and social digression for a significant subset of the population, which has both direct and indirect links to racial oppression.

A. Alexander's New Jim Crow

If one accepts Michelle Alexander's notion that the war on drugs is the "New Jim Crow," as she posits in her book of the same name, then one reasonable solution is another anti-Jim Crow-like approach, as the country witnessed in the 1960s. This would be an effort to destroy the system. Racial segregation (America's racial apartheid system--the first Jim Crow) was dismantled with direct legal action, political agitation and lobbying, community organizing, civil disobedience, and fervent and constant protest. The system (Jim Crow) also required entry components after the legal system was dismantled. This provided an opportunity for those once denied access to the system. Affirmative action is an example of an effort by the government that provided blacks with entry into the system, which was long denied to them by their own country through public and private repression. Thus, just as black Americans required the dismantling of the Jim Crow system, they also required a path to true citizenship through entry programming.

Unfortunately, a Jim Crow solution is not likely forthcoming with respect to the many African-American men and women incarcerated by the war on drugs. First, it is not likely that African Americans on a mass scale will collectively and passionately embrace this cause as the cause of the moment as they did the quest of civic equality in the twentieth century. While there is disappointment and growing opposition to the war on drugs and what it is doing to African Americans, it does not *806 produce the same anger and desire to protest as the struggle against racial discrimination and segregation did in the twentieth century. As stated above in reference to the Rockefeller drug laws, many blacks were in support of Rockefeller's call for a new approach to drug enforcement.

There will be no marches, protests, or righteous indignation because millions of African-American men are incarcerated on drug charges. Perhaps millions more are on the way to prison if the war on drugs is not changed, but the idea that a groundswell of civil disobedience, advocacy, and political organizing is looming is not likely. In addition, even with protests and struggle, the government would have to acknowledge the mistake of its war on drugs policy and take ownership of the problems it has created. This, in our opinion, is also unlikely to occur. There is no evidence that the United States has the will to decriminalize narcotics (marijuana, heroin, and cocaine for starters), release millions of individuals from prison quickly or immediately, or devote billions of taxpayer revenue to implementing re-entry programs for those who have gone to prison in the war on drugs. In our opinion, only outright documented evidence of an intentional racial motive in the execution of the war on drugs would bring about bold action on the part of the United States collectively to assist African Americans in this manner. Such evidence, if it exists or is revealed, could also have some impact on the status of many non-African Americans incarcerated in the system.

B. Human Rights Watch

Reginald Dwayne BettsEven though it is unlikely that a Jim Crow-like movement will germinate, terminating the war on drugs through public pressure, protest, and organizing, it is notable that a program to end the war on drugs in the United States has already been proposed. It is also quite credible in content.

Human Rights Watch, an international non-governmental organization financed by George Soros for purposes of global research, provides a potential shift in policy that could form the foundation for a new post-war on drugs policy. Their report, Targeting Blacks: Drug Law Enforcement and Race in the United States, released in 2008, is a comprehensive approach to the problem detailed in this Article, namely the fate of African-American men in the criminal justice system. If a *807 program were to be implemented, the proposals of Human Rights Watch are ideal for our goals.

According to the report, African-American men in 2006 were 53.5% of those incarcerated for drug crimes. They were 11.8 times more likely to enter prison for drug offenses than white men, and of all African-American men in prison, nearly forty percent were in prison for drug crimes. These statistics are especially troubling considering that whites comprise six times the drug offenders as blacks, yet black men are the individuals who are finding themselves incarcerated.

The recommendations of Human Rights Watch are designed to address the destructive results of the drug wars and to stop the destructive cycle for blacks as a result of so many men being removed from their communities and being underdeveloped. Prison time, in other words, is for the most part a time of underdevelopment. Human Rights Watch recommends the adoption of "community based sanctions and other alternatives to incarceration for low-level drug offenders," as well as "more resources [for] substance abuse treatment" and ""outreach" related to prevention of drug addiction. Most importantly, Human Rights Watch calls for the "elimination of] mandatory minimum sentences for all drug offenses," a proposal that forms the core of any logical program of reform. The report also recommends "investments in community, educational, health, and social programs" and the adoption of ""public health based strategies" to address drug abuse. The report by Human Rights Watch also seeks to address racial discrimination in conjunction with the war on drugs. A comprehensive analysis of racial disparities in drug enforcement from arrest through incarceration is recommended first. Second, all stakeholders involved should work together to ensure that the policies implemented do not burden communities traditionally affected by the policies in a racially disproportionate manner.

These recommendations are important because they seek to uncover any racial intent in policy making. In addition, these policies recognize the potential long-term damage that current drug enforcement policy is *808 causing and can cause. The report also recommends the enactment of policies that do not result in racial bias or racial discrimination. This recommendation is based upon the United Nations' human rights law, specifically, the International Convention on the Elimination of All Forms of Racial Discrimination. This recommendation would prohibit laws that would restrict human rights and fundamental freedoms. Considering the "colonial" status of many black men as a result of convictions under current drug enforcement policy, this proposal would counteract policies that repress basic rights and privileges in the United States.

To supplement these race-based proposals, Human Rights Watch also recommends the elimination of any policies that, in fact, promote racial discrimination against blacks. In theory, if accepted this final recommendation would likely eliminate many of the drug enforcement laws throughout the country considering the statistical disparities that exist now in the system towards black men.

C. Re-entry

With incarceration and the eventual release from incarceration arises the need for re-entry into society. Re-entry is more of an issue now because of the huge increase in the prison population over the past forty years. Any scenario that results in the end of current drug enforcement policy and/or the release of many of the incarcerated from prison would require significant efforts at re-entry. Eumi K Lee, Associate Clinical Professor of Law, explains the importance of re-entry in general in the following manner:

Given this incredibly high recidivism rate, successful prisoner reentry is of the utmost importance in unraveling this crisis.

Indeed, the failure to integrate back into society is part of the self-reinforcing cycle that underlies the crisis. Prisoners enter the correctional institution, often with existing mental health or substance abuse issues, which are left untreated.

The challenges faced by, black men leaving incarceration and entering communities are numerous. They include the general stigma of *809 being incarcerated and racial attitudes, difficulties earning income or obtaining gainful employment, little if any access to financial credit, deteriorated social bonds and connections, and limited access to housing, health care, and education. The fact that many black men are challenged in all of these areas upon their release from incarceration is precisely how they become non-citizens. Some have their parental rights challenged, while their voting rights, right to sit on juries, ability to receive loans for education, and certain types of employment are denied. Military service, driver's licenses, passports, and many other basic indicators of real citizenship are also negatively affected. To release the formerly incarcerated into the community without a personalized plan for transition, as well as an overall effort to prevent disenfranchisement, is part of the destruction of current drug enforcement policy as well as the path to recidivism. If anything, the end of current drug enforcement policy should entail an end to many of these barriers. While states differ on how they treat these various issues, this does not mean that coordinated efforts to address these post-release barriers are impossible.

D. No Entry

Considering that overall we have doubts that there will be a concentrated effort to alter drug enforcement policy, there is no other alternative but for African Americans, if they are committed to addressing this policy issue, to try to alter the effects of it on their own. In sum, it is largely the task of African Americans to reduce the number of African-American men entering the criminal justice system.

As stated previously, the federal government is not likely to decriminalize marijuana, heroin, or cocaine. It is also unlikely that the federal and state governments will begin to release those who are imprisoned on drug charges in mass quantities. It is also questionable whether there will be a concerted effort to provide for re-entry into the community and restore individuals convicted of drug crimes to full citizenship status. Considering all of these problems, African Americans have no choice but to address the problems presented by controlled substances and the policy towards controlled substances themselves. This includes both re-entry efforts and efforts to prevent incarceration in *810 the first place. If this task appears difficult, this is true. However, it is not impossible. Self-help organizing amongst African Americans is part of their history.

1. Self-Help Tradition

The problems presented by drug use, abuse, addiction, and the enforcement of laws prohibiting possession can be addressed through self-help efforts. In other words, it was not always the case that the challenges of social, political, and economic policy and status in the United States were addressed by government efforts. African Americans, as a result of their status as second-class citizens in the United States, were forced to address many issues on their own.

In William Pollard's doctoral study, Study of Black Self Help, a brief history of this tradition is revealed and examined. According to Pollard, in the period from the 1890s to the early twentieth century, the fate of many African Americans would have been tragic but for the persistence of the many black men and women who chose to assist other blacks ("uplifting the race," Pollard calls it) as opposed to pursuing personal gratification. Pollard states that the work of blacks engaged in self-help activities included work with "delinquents." Some of the self-help efforts at the time centered on race pride, but much of the work involved the young, the aged, and those too ill to care for themselves. There were various institutions involved in self-help efforts in black communities, including churches, social welfare organizations, clubs, fraternal organizations, secret societies, and educational institutions. There were, according to Pollard, specific efforts to address the lack of reformatories for black youth, demonstrating again some degree of focus upon those African Americans who had strayed into illegal activities.

2. Organizations

Historically, African Americans have formed organizations to assist with problems associated with African Americans in times of great strife. These organizations have had dedicated missions and have been quite successful. In the early twentieth century, major organizations were *811 formed due to the fact that African Americans were denied civic equality and citizenship rights in the United States. The current problem where many African-American men have been (or will be in the future) rendered colonial citizens in their own country due to drug enforcement policy presents a similar but more complex problem.

However, in the last century, the National Association for the Advancement of Colored People ("NAACP") was formed in 1909 during the Progressive Era to seek racial equality in the United States for the nation's blacks. While the NAACP wasn't a pure black self-help organization (whites initially ran the organization), its formation can be traced to a black self-help organization known as the Afro-American League.

T. Thomas Fortune, a New York-based newspaper editor and publisher, is largely responsible for the creation of the National Afro-American League. In 1887, using the editorial pages of his newspaper, The Freeman, Fortune called upon African Americans to "form an organization to fight for the rights denied them." The organization's goal was to address racial equality and racial oppression, issues that were quite prevalent at the time. While the organization was unsuccessful, it led to the formation of a successor organization--the National Afro-American Council, an entity dedicated to the same goals. While these organizations evolved into multiracial organizations, African Americans created these organizations.

The National Afro-American Council was more successful than its predecessor. It benefited first of all by the involvement of Booker T. Washington, who attended meetings of the council. Washington, the so-called leader of black Americans in his day, was always closely associated with self-help causes in Black America historically. He was often described as a "conservative" and a "compromiser," but, despite his outwardly expressed views, he also worked behind the scenes to oppose racial inequality and segregation.

*812 In contrast, T. Thomas Fortune, the official leader of the council, was far more militant and impatient with racial progress. Fortune, who became a close confidant of Washington, did not necessarily agree with Washington's views but did agree with Washington as to the final goal that needed to be achieved: racial equality for blacks in the United States.

There are also less known self-help efforts by African Americans historically worth noting that are likely more applicable. One such effort occurred because of late nineteenth century and early twentieth century efforts by blacks in the city of Buffalo, New York, who sought to address education for their children when the city of Buffalo refused to take the necessary steps. The black community of Buffalo had already taken steps earlier in the century regarding reading and writing with their children when racial segregation denied their children educational opportunities. By 1837, the blacks in Buffalo formed the Young Ladies Literary Society and the Debating Society to address their concerns regarding reading and writing with their children. The blacks in Buffalo also formed other organizations to address the lack of black history educational outlets in the city and to educate the public on "heated political issues." The educational efforts in Buffalo organized within the black community were started due to racial prejudice and demand for the services. These services also included vocational training, self improvement, and efforts to assist black students locate jobs. Overall, the blacks in Buffalo were attempting to uplift the community on their own, "politically, socially, and economically."

There were other cities where problems in the black community were addressed within the community by blacks. Chicago, during the Progressive Era of the early twentieth century, also found blacks attempting to deal with serious problems on their own by forming self-help organizations. Black charity organizations began to appear more *813 and more during the Progressive Era. The influx of blacks to urban areas, the growth of a black middle class, and lack of access to other services forced blacks to form their own service organizations in Chicago to address issues of concern to blacks at the time. One example of an organization formed during the Progressive Era by blacks to address a specific problem among blacks in Chicago was the Chicago Home for the Aged and Infirm Colored People in 1898. It was the first of the charitable organizations formed by blacks at this time.

In Chicago, blacks also formed the Louise Juvenile Home for the Dependent and Neglected Children in 1907 and the National League for the Protection of Colored Women in 1906 to assist young women arriving to the city seeking employment and a new start. This latter organization was created with the specific purpose of stopping the exploitation of young women. This was yet another example of African Americans deciding to address problems within their community on their own.

E. The Power of Governors and States

When his second term as President was reaching an end, President Bill Clinton pardoned a twenty-nine year old African-American woman named Kemba Smith. Smith was entering her seventh year in prison, set to serve twenty-four years as a result of a conviction on a conspiracy charge to distribute crack cocaine. Smith was in college when she pled guilty and had no criminal record. Smith was, to a certain degree, the perfect prisoner in the nation's flawed drug enforcement policy. Her crimes were non-violent and indirect; yet, as a result of her desire to take responsibility for her mistakes, she was sentenced to twenty-four years in prison.

President Clinton's decision to pardon Smith was both appropriate and symbolic. But, more importantly, his decision is representative of another tool at the disposal of society to weaken current drug enforcement policy: executive clemency and pardon power. This power is mostly available to governors of the various states in the current drug enforcement environment. While there is no large usage of the tactic, *814 some instances are notable. This power is especially noteworthy considering the fact that states continue to face budget problems stemming from over-incarceration and related state correctional services. Numerous states have taken steps to reduce their correctional budgets, and seeking to reduce prison populations is one tactic. Pardons and clemency are not a major part of such an effort, but they do send a symbolic message regarding outdated and failed drug enforcement policy from those who understand it first-hand.

For example, in his first twelve years in office, Governor George Pataki of New York pardoned numerous individuals. Nearly all of the individuals pardoned had been convicted under the state's drug enforcement Jaws passed by Rockefeller. In December 2002, Governor Pataki granted clemency to four individuals incarcerated under the state's Rockefeller drug laws. By 2005 Pataki had granted clemency to thirty-one individuals; twenty-seven of those individuals had been incarcerated as a result of the Rockefeller drug laws.

Just recently, Governor Jerry Brown of California pardoned seventy-nine individuals in one day, many for minor drug crimes. This decision by Governor Brown is the kind of concerted effort that is needed from more governors. In order to begin to address the problems stemming from drug-related laws, governors should pardon or offer clemency to more individuals, especially if they are in prison for non-violent drug possession offenses.

While the actions of governors on this issue might be a small contribution to the effort to change drug enforcement policy, governors across the country have the potential to impact and express a symbolic message by using their pardon and clemency power much more in *815 situations where individuals have received long sentences for non-violent drug offenses.

Brian G. Gilmore is Clinical Associate Professor of Law at Michigan State University College of Law and poet.

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.*