[Congressional Record Volume 167, Number 189 (Wednesday, October 27, 2021)]
[Senate]
[Pages S7409-S7410]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          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.

[[Page S7410]]

  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.