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Sentencing Disparity
Mr. DURBIN. Mr. President, I would like to speak on another topic that, sadly, is still relevant today as it has been for so many years. And I want to start by recalling 35 years ago, when I was a Member of the U.S. House of Representatives, I was faced with one of the most troubling votes in my whole career.
It was the height of the war on drugs. A new narcotic showed up. It was called crack cocaine. We didn't know much about it, but we knew several things: First, highly addictive; second, dirt cheap; third, if a woman who was pregnant used it, she could cause permanent harm to the baby she was carrying.
We started worrying that this was going to become the drug of choice across America and that the war on drugs was going to be lost forever.
And just about the time we were debating this, an event took place that really had no direct connection to crack cocaine, but it rocked the Capitol.
There was a basketball player at the University of Maryland, whose name was Len Bias. He was a very good basketball player, destined for the NBA. Sadly, he overdosed and died. It shocked everyone all across this region, and it certainly was felt in the House of Representatives. And, perhaps, it was part of the impetus for a measure that we enacted, which I later came to really regret.
Congress took action in 1986. I joined 400 of my House colleagues. We decided to take a stand--a really powerful stand--against crack cocaine. We decided to create a sentencing regime for crack cocaine that would be so overwhelming that anyone across America who considered using it would think twice. We went to an extreme. We decided to impose a 100-to-1 disparity between crack cocaine and powdered cocaine.
What does that mean?
If you are arrested with 5 grams of crack, you were subject to the same mandatory sentencing as someone arrested with 500 grams of powder cocaine, a 100-to-1 sentencing disparity. Our logic was there. If people knew that that kind of penalty awaits, they will surely stay away from this deadly new narcotic.
It turned out we were completely wrong. The net result of our 100-to-
1 disparity against crack cocaine didn't drive the cost of the drug up on the street. It drove it down. It didn't lessen the number of people who were addicted. It increased the number of who were addicted--
exactly the opposite of what we expected to happen.
And then for a decade, maybe two decades, we reaped the whirlwind. The 100-to-1 disparity meant that we were filling our prisons to a level we had never seen in the history of the United States, and, frankly, a level the world had never seen in terms of prison population. Sadly, the vast majority of them were African Americans. We stole away one or two generations of African-American males--and some females, too--in the process of making this terrible mistake.
It didn't make America any safer at all. In fact, it worsened the racial inequities in our justice system. Black Americans and White Americans use drugs at the same rates. Yet Black Americans are six times more likely to be imprisoned for drugs.
Fortunately, lawmakers on both sides of the aisle recognized this was a true injustice. I tried to undo some of the damage done by this war on drugs. We came together in 2010, on a bipartisan basis, to pass a bill I called the Fair Sentencing Act. It lowered the Federal drug sentences for the first time since the war on drugs.
Through bipartisan negotiations, we were able to significantly reduce the crack-powder sentencing disparity, but we didn't eliminate it. We reduced it from 100-to-1 to 18-to-1.
You say: How did you come up with the number of 18?
Two opposing Senators--one, myself; and the other, Jeff Sessions of Alabama, negotiated it literally in the Senate gym. We came to this agreement. We will make it 18-to-1 instead of 100-to-1. It is still dramatically higher than it should have been, but it was also dramatic progress.
Now, more than a decade later, we can finish the job with the EQUAL Act, a measure I introduced this year under the leadership of my friend and colleague, Senator Cory Booker. Once again, we have been able to come together on a bipartisan basis, only this time we agreed we needed to finish the job and end this disparity.
We have help on the Republican side--how about that, a bipartisan approach--with Senators Portman, Paul, Tillis, and Graham joining us.
Our House colleagues overwhelmingly agreed on a bipartisan basis themselves to change this once and for all, to go back to one-to-one in terms of sentencing on crack and powder cocaine. The legislation passed 361 to 66 in the House. Not bad, certainly in this divided political atmosphere.
It is amazing. By passing the EQUAL Act, the Members of the Senate can prove that we can learn from our mistakes.
Addiction, we have come to learn, is not a moral failing. It is a disease--a treatable disease. And if our Nation's laws encourage people to seek treatment instead of incarcerating them for seeking self-
medication, we can potentially save tens of thousands of lives every year.
If I had said to the people back in Illinois 10 or 15 years ago, I went to them and said, ``Did you hear somebody downtown last night died of a drug overdose?'' 15 years ago, you would have said, ``Oh, that is a darn shame.''
And if I said, ``Try to describe to me what you think that person looked like, who that person was,'' they would have said, ``My guess is it is an African American, probably a male. He is probably between 20 and 35 years of age.''
And you would have been right 15 years ago.
But now we are seeing overdoses, particularly with opioids and fentanyl, that really belie that image, that stereotype of the drug addict. We are finding drug addiction to opioids reaching every corner of society--Black, White and Brown, young and old, people who have a lot of money, and people who are dirt poor.
And so we started looking at addiction differently. It isn't a problem with the minorities. It is a problem with America that we have to cope with. And we need to deal with it honestly, not with stiff criminal penalties so much as treatment that can deal with these addictions, and that is critically important.
The war on drugs took its toll on America. It directly fueled the crisis of mass incarceration, and we wasted--wasted--billions of Federal dollars in the process, dollars that could have been spent on actually making America safe.
We need to replace criminalization with commonsense and compassion. We can start by passing the EQUAL Act.
SOURCE: Congressional Record Vol. 167, No. 189
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