US Senator Dick Durbin on ending mass incarceration

all that they have done and planned to do. Our first guest found his calling after he had already been elected to Congress in the nineteen eighties, when many of our leaders acted hastily during the hysteria of the crack epidemic. Since those days, he spent much of his time trying to undo the unintended consequences of some of the worst criminal legislation ever enacted in modern times. I want to

mention one story. Her name was Eugenia Jennings. She sold crack cocaine to buy clothing and food for her children. The mandatory minimum sentences a hundred to one, and they ended up sentencing to twenty two years in prison. I actually visited her in Freble Jail I will never, never forget Jason, looking down in her tear filled eyes, and she said to me, Senator, if you let me go into my babies, I'll never commit a crime again. It's kind of thing, you know, it sticks with you for

a lifetime. Now, having been named Chair of the Senate Judiciary Committee, he hopes to be even more effective in his fight for reform and equal justice. Senator Dick Durbin right now on Righteous Convictions, Welcome to the very first episode of Righteous Convictions, a show where I get to interview people who are doing amazing work, making a real difference for no reason other than that it's the right thing to do. And I can think of no better person to be our guest on the first episode than

Senator Dick Durbin of Illinois. UM, Dick, Welcome to Righteous Convictions. Jason, honored to be on your show. I can't think of an individual in the private sector as we call it, who has done more personally than you have to bring justice to America. And I just started to join you.

Thank you for those kind words, and I'm so excited to talk to you because justice is on my mind and I know it's on your mind, and you have evolved in such a profound way over the years, and as it's been a real honored to work with you. But how did you first become so committed to reforming I'll call it our injustice system, Jason, let me tell you. As a member of the House of Representatives, I represented uh midwestern district in central Illinois. That's small town America.

The biggest city with Springfield with a hundred thousand population and total population in the district around six hred thousands. So there are a lot of small towns in rural areas, generally conservative, and it leaned Democrat by a little, but not by a lot. And so I defeated a Republican incumbent of twenty two years. And I was very mindful of the fact that I represented people who looked at

life from a Midwestern viewpoint, a conservative viewpoint. So on issues of law and ardor you know, I kind of thought to myself, I want to be fair about the administration of justice, but I shouldn't be afraid of prosecuting criminals and making certain they pay a price. That thinking led me to six, of course, when we had to deal with the issue of a brand new narcotic called crack cocaine. That was a moment that made such a

difference in the history of justice in America. I try to describe it in terms that I remembered as a politician. Along comes as a narcotic. It's so cheap, it's five bucks ahead, it's so addictive, it's destructive, particularly to mothers or carrying babies, and it's sweeping the country. And there was a human cry in Washington, do something and do it fast. This is going to result in more drug

dependence than anything you've ever seen as an American. And right in the middle of that in Washington, d C. There was this one seminal event, This outstanding basketball player at University of Maryland, Lynn Bias, who was destined for the NBA, overdosed and died. His death had nothing to do with crack cocaine, but that was lost in translation. It created a political force, a momentum impetus. You would be amazed at how many of us voted in favor of the bill that was supposed to put an into

crack cocaine. And the message of the bill was very clear, don't touch it. If you touch it and you're caught you're gonna end up with a criminal penalty the likes of what you've never seen. We're gonna hit you harder with this form of cocaine than anything else, a hundred to one hundred to one between crack and powder cocaine. And then the belief was this law is so powerful, we can stop this drug in its tracks. So we

enacted the law and we were wrong. At the end of the day, we found out that not only were we filling our prisons, but sadly, the street price of the chemical was going down and the user numbers were going up. It was a total failure, and as we looked at it over a period of time, I reflected on it, and I came to the Senate a few years later and said, what can I do? And that's what started this whole effort to change the law. The mistake we made, and it was a hysterical time. And

the media is complicted in this as well. Here's a drug that we now know, of course as pharmaceutically identical to cocaine. It just became the demon drug. And in this country there is a proclivity to always having some sort of demon drug. And then the media runs with it, and politicians react, and you have expressed to meet riv it lee your deep regret or even shame about it. But the differences, you've actually done something about it, and

you're continuing. You in two thousand ten, right, you sponsored the first mandatory sentencing rollback, and I think it was forty years in America? Is that right? I think you're right. I think that members are right right, because politicians typically it's very easy and actually expedient to sponsor tough on crime legislation, and nobody up until then had had the

courage to say, we're wrong, we're going to roll this back. Unfortunately, the best deal that the Republicans would agree to at the time was eighteen to one, and that disparity is still in effect to this day. And of course it was also not made retroactive, which is crazy. Why do we do that? Why do we change laws and not make them retroactive? How does that make sense? That is hard to defend, but it's the nature of things to move slowly for fear that you're going to have a

Willie Horton moment. Let me be very bluned about this. A release of someone who's going to go on a murderous rampage and make every politician who voted to release that person to pay a price in the next election. But in this situation, there were so many people affected by it. Just the numbers, I think, Jason tell the story. The federal prison population was forty six thousand, grew to two hundred thousand in two thousand nine. And this had a lot to do with mandatory minimums and the hundred

to one ratio between crack and powder cocaine. So when I finally got into the Senate in a position of the Judiciary Committee where I thought I could do something, I introduced this Fair Sentencing Act, and I wanted to take the hundred to one to one to one for the reasons you mentioned. Cocaine is cocaine is cocaine, and for us to demonize one application of it, there was no scientific evidence for that, and we were ruining lives.

We were putting people away by the hundreds of thousands under this mistaken part of the law, and that's why we started pushing for the change. I ended up negotiating with none other than Jeff Sessions, Yes, the same man who became Donald Trump's Attorney general. He was opposed to any change of crack cocaine. And we had a negotiation session that took place in the Gymnasium locker room for the Senate, and it was a morning of the hearing, and I said, Jeff, you gotta give me a break

on this thing. This hundred to one is terrible. Well, he says, the best I can do is to one. Oh, come on, Jeff, you know, bring it down to ten to one. No, I can't do that. How about fifteen? No, how about eighteen? Well, okay, and you wonder how laws are made. That number eighteen came out of that negotiation standing in front of our lockers. Later on in the day, we passed it ultimately in the Senate, ultimately in the House,

ultimately signed by President Obama. But it brought down dramatically the penalties that were being applied, and it wasn't retroactive. You're right, Jason, it should have been. We got to that later. I'll never forget you telling me about having done a presentation in the Senate chamber, and I am I remembering correctly that you actually brought a death row

cell into the chamber. Not in the chamber, but we had had an illustration on the issue of solitary confinement of exactly the size of a very limited cell that a person would be confined to for twenty three hours at a time, so that people can actually just feel the moment by standing inside and trying to visualize making that your life for twenty three hours a day. It really was a issue of solitary confinement. They all come together, Jason.

I mean they're connected, one right to the other. The mandatory minimum sentences a hundred to one, the solitary confinement. We had a hearing. After hearing and I brought people end to tell the story, I want to mention one very quickly, and it's one that you had played such a key role as a private citizen in her name was Eugenia Jennings, and Eugenia Jennings was a poor woman who had had a horrible life experience. She had three

little babies. She sold crack cocaine, caught for the third time, and they ended up sentencing her to twenty two years in prison. She was twenty three years old. She had sold the crack cocaine to buy clothing and food for her children. Didn't make a difference. It was three strikes and she was out and she had been imprisoned, and her brother had taken her three little kids to raise them,

and came to testify before a committee. He told the story of Eugenia, and it was such a sad, heartbreaking story that I ended up doing my best and reaching out to my friend, my former colleague, Barack Obama, to be honest with you. In the early days of his administration, he had some hold overs in the Department of Justice who were not giving him good advice and certainly not reflecting his value use. It turned out that I asked for a commutation of Eugenia Jennings sentence, and he agreed.

It was the first commutation he had given as president, and she was released in after having spent more than a decade in prison. Actually visited her in federal jail. I will never never forget, Jason, looking down in her tear filled eyes, and she said to me, Senator, if you let me go home to my babies, I'll never commit a crime again. It's kind of thing, you know, it sticks with you for a lifetime. I want to make sure that's a matter of record. You gave her

a helping hand, and I'll never forget. Are you still in touch with her. She had cancer. When she was released from prison. She lived for two years, She got to see her girl graduated from high school, and she was able to live in her own apartment with her girls, which was her dream in life, for about two years before she passed away. Oh my god, what a tragic

story all the way around. And it is also worth noting it's not talked about much, but the percentage of people that die within two years of being released from prison in America is extraordinarily high, and it's understandable when you look at the draconian conditions that we subject our fellow citizens too. How did it get this way, Dick? There was a time when there was a focus on giving people a pathway to a life when they were released.

Now it feels like all we do is punish them and set them up for failure when they are released. How did that shift and what can we do about it now? If you look at the course of history, in particularly American history, you can see the emergence from time and time of reform movements when it comes to incarceration, and they're more enlightened and they're usually driven by the moral community, whether it's formal religion or people who want

to raise the discrimination that is clear a part of incarceration. Uh, let's call it for what it is. Race and poverty have more to do with it than anything else, and they have from the beginning of our nation's history. Interestingly, at this moment, we're entering a relatively good phase compared to where we have been. You take a look at the situation where I end up moving the First Step Act. It ends up being trumpeted by Jared Kushner, whose father

was incarcerated. Kushner convinces his father in law to sign the bill. The people supporting the bill include not only the obvious usual liberal suspects like myself, but the Koch brothers. Many conservatives are supporting it, some because they are libertarian in their views, others because they're tired of seeing all this money, taxpayer money, being spent on incarceration with no apparent evidence of success. So we are in a more

enlightened period. We have a long way to go, a long long way to go, but we're at least starting to look things more honestly. One of them is addiction itself. We've started to view addiction as a disease that I think is helping us deal with drug crime and drug use in a much different context. I want to turn to the death penalty. I mean, I think Florida as a microcosm of the death penalty. There have been thirty one exonerations from death row in Florida, and they've been

nine people executed. And then we know that there are innocent people who have been executed in Florida, people like Jesse to Pharaoh. So in the state of Florida, they continue with this machinery of that even though they're probably only getting it right about six at the time. I mean, what are we doing well? I can tell you this. I think two things that have been responsible for the most dramatic change in our conversation on criminal justice and

particularly the death penalty, or videotapes and DNA. All of a sudden, we have tangible, real evidence of things that occurred. And it opens our eyes to the fact that for decades, for centuries, we were relying on testimonial evidence and other things which were unreliable and often wrong, and sadly, innocent people died as a result of the miscarriage of justice. And the fact that the evidence that was presented was

just playing wrong. Well, DNA is giving us something that is specific and objective, and it's doing dramatic things and changing our outlook. You know, I have this conversation center with with people who are protestantly, I say, what percentage of innocent people are you okay with executing? Because there's always going to be problems in the system even if everyone was doing their best, And unfortunately that's not the

way it is. And it's interesting that the legislation that you're sponsoring, you being, of course from Illinois, Illinois having been sort of a hotbed for this right where the Northwestern law students in the law school found so many innocent people ball on death row, leading to a Republican governor, Governor Ryan actually commuting the sentences of everyone on death row in Illinois. Can you explain what you're working on now that will hopefully put an end to the death penalty.

I want to say hats off to the Illinois Innocence Project as well as Northwestern and the work that they've done and so many others for really opening our eyes to the reality of what we face. You mentioned George Ryan. George Ryan, I've known for years, years and years as a kid involved in politics. I watched it. He was a conservative country club bay who one day is said publicly, I can't bear the responsibility of ordering the execution of a person. It's I'm going to put an end to it.

There just won't be any death penalty in Illinois. Courageous of him, and he paid a price for it. Politically. A lot of people criticized him for it, but his sales caught the wind of public opinion and really started

changing what we thought about the execution of prisoners. More and more present events over the last twenty years have said they were just not going to be engaged and the death only wouldn't happen on their watch until the former President Trump went on a killing spree in his last six months in office with Attorney General barr Uh And so I joined with Congressman Pressley, and we have a bill that would end federal deafenitalty once and for all.

I think we ought to make it clear that is a policy and it's not going to change with the new president. What a difference an election makes. Support for the death penalty in America is at an all time love right, it's under fifty it is, and it's important to note the racial disparity, and I just want to read something quickly here. The color of a defendant and victim's skin plays a crucial and unacceptable role of deciety.

Who receives the death penalty. In America, people of color have accounted for a disproportion forte percent of total execution since ninety six percent of those currently awaiting execution. It's even higher when you look at the US military, it's eighty six percent people of color, in Colorado eighty percent. The US government federal it's seven The seven percent of people on death row are people of color. So I think it's critically important that you're gonna put an end

to this. We reached a point where we started looking I did at the death penalty and saying myself, even if you think that any given individual has committed such a horrendous crime, without a doubt committing that crime that they would merit execution, you have to ask yourself what you just cited. How do you explain the fact that it is the racial minority and the poor in America

who overwhelmingly are the ones convicted. There's something wrong with the system of justice that ends up at that place. It was in that Supreme Court. Justice Harry Blackman said something which I had quoted so many times. He said, from this day forward, I no longer shall tinker with the machinery of death. And those words really summarized his

frustration at what you just identified. Despite all of the procedural changes, it bottom line turned out that race and poverty were driving the death penalty in America and there was nothing he could do to change it. And he just said he's going to wash his hands of it. He no longer was going to act like he could

make it work right. It wasn't going to work right, and as you mentioned, innocent people were going to die as a result of I agree with Justice Blackman at this point in my political career, a lifetime of politics, I will no longer tinker with the machinery of death. What can I say that is that you know, it's just sinking in it. It's so good to hear you

say it. And I think we're going to see the end of the death penalty in America, hopefully in the next four years, not only federally, but in every state that there's so many innocent people that Richard Glossop and Julius Jones, among others in Oklahoma, Anthony Panovich and in Ohio. They're innocent people on death rows all over this country. It's something that should trouble everyone of good con I mean, it's exciting to see the public perceptions changing. You're helping

to drive that. There's a real awakening. It feels like and I guess what I want to ask you, Dick, before we close. If you could waive a magic wand and change the justice system to a more just system, what would you do? It's an appropriate question. I will be officially named the chairman of the Senate Judiciary Committee. I've been on that committee for twenty two years waiting

for this moment. I have the thinnest possible majority in the composition of the Senate, and the chance, if I bring an issue to the floor for Kamala Harris to break the tie. But I am excited about the opportunity because this committee, which once I believe was the most prestigious and Capitol Hill, has an opportunity to reopen the national conversation on so many areas relative to justice and

criminal justice. I have an exceptional group of Democratic senators on that committee who like myself are so anxious to finally spring into action and do things. Hold hearings, have a national dialogue, come up with good legislation, get it passed and signed by President Biden. I am more optimistic what we can achieve in the next few years than most because I know the potential that can occur here

in the United States Senate. We have a variety of things, from Voting Rights Act, which really goes to the basics that we just learned were so critical in the peaceful passage of authority under our constitution. Issues involving immigration. It was twenty years ago that I introduced the Dream Act. It's still has to become the law of the land, and almost two million people are waiting for me to

finally keep my promise and pass it. I could go through a long list, Jason, but I just want to tell you we are in a position now the likes of which we have not seen for years. I hope that we can capitalize on it and make good things happened for the future of America. Well, Dick, it gives me great confidence just knowing that you're going to be there to guide the ship. Any closing thoughts, just one thing I want to close with Jason Flam I'm honored

to count as a friend. I know where your heart is on this issue, and it has made a difference in the lives of so many, so many people, and it's made a difference in my life to know that you're there when I need you. Wow. Okay, now let me just go float off on a happy cloud. Thank you for listening to Righteous Convictions. I'd like to thank our production team Connor Hall, Jeff Clyburne and Kevin Wardis. The music in this production was supplied by three time

Oscar nominated composer Jay Ralph. Follow us on Instagram at Wrongful Conviction, on Twitter at wrong Conviction, and on Facebook at Wrongful Conviction podcast. Righteous Convictions is a production of a bilel for Good podcasts and association with Signal Company Number one h