Unjust sentencing

U.S. Sen. Dick Durbin hopes to alleviate inequality in penalties for crack and powder cocaine

Sen. Dick Durbin says he's working to undo an injustice that he believes he and others helped create more than 30 years ago.

During the height of President Ronald Reagan's War on Drugs, Durbin and other members of Congress voted to increase the penalty for possession of crack cocaine far beyond that of its base ingredient, powder cocaine.

Powder cocaine, which is snorted, is the form preferred in the white community and crack, which is smoked, is more prevalent in Black neighborhoods.

"Racism is part of it," Durbin told Illinois Times. "The fact is, it was a drug of choice in the African American population. And that's why when we filled the prisons, we had so many African Americans. And I'll tell you, it has led to a feeling toward the system of justice by the African American community that it was just fundamentally unfair that the drug that they chose would end up (with a penalty) being a 100-to-1 over powder cocaine, which white teenagers and college students were using."

David Risley, a former federal drug prosecutor for the Central District of Illinois, said he is not necessarily opposed to evening the penalties for the possession of crack and powder cocaine, but he said the original punishment disparity had little to do with race and much to do with the devastating impact of crack and how it was distributed.

Durbin said over the years he has worked to ratchet down the penalties for crack cocaine so that they would be closer to that of powder cocaine. Previous legislation dropped the sentencing ratios from 100-to-1 to 25-to-1 and later 18-to-1. But Durbin concedes this does not go far enough.

"We were scared to death of crack cocaine (in the 1980s)," he said "It was cheap. It was deadly. And we wanted to stop it in its tracks. So, we did a 100-to-1 (penalty) for crack over powder, and the net result of it was a complete failure. We had the price of crack cocaine go down instead of up. We had the number of users go up instead of down. And over a span of a decade or two, we packed the federal prisons, primarily with African Americans."

Inimai Chettiar, deputy director of the Washington, D.C.-based Justice Action Network, the country's largest bipartisan criminal justice reform organization, said legislation to equalize the penalties has stalled before the Senate Judiciary Committee, which is chaired by Durbin.

"The Equal Act has stalled in Congress despite overwhelming bipartisan support, including from members of law enforcement," she said. "We thank Chairman Durbin for his leadership on this bill and we support him in moving the bill forward to bring justice to the Black men and women who have already served disproportionate sentences and continue to languish behind bars, separated from their families and communities."

Durbin said the measure has failed to come up for a vote because of the opposition of a Republican member of the committee, whom he declined to identify.

"One Republican wouldn't go for 1-to-1, and we deal with consensus on the committee," he said. "I have him down lower – substantially lower than 18-to-1 – and I'm trying to get the other side that wants it to be 1-to-1 to accept a different figure. But that's where we've been stuck for over a year. I'm going to do my best to get this moving."

Former prosecutor Risley said cocaine addictions develop much more rapidly when the drug is smoked rather than snorted. He added when crack dealers are arrested on the street, usually only a few rocks of crack are found in their possession because the remainder of their stash is stored elsewhere in powder form waiting to be cooked down to crack.

"Conditions change, and sometimes laws need to be changed because of that," Risley said. He added, if the goal is to equalize the penalties between the two forms of cocaine, why not just increase the penalty for powder cocaine to equal that of crack?

Durbin said a better policy might be to focus on rehabilitating those with addictions rather than incarceration.

"I might say that all the scientific evidence that I could find says there's no distinction between the addictive nature of powder cocaine and crack cocaine," he said.

But Risley noted in the 1980s, when the first legislation was introduced, violence associated with crack was a major concern.

"Street gangs – including here in Springfield – were fighting over turf and there was a lot of violence associated with that," he said. He added by aggressively prosecuting crack cocaine cases, violent criminals were taken off the street.

But Durbin said the current punishment disparity breeds contempt for the law from many ordinary people.

"It just seems to them to be fundamentally unfair," he said. "It started bordering on nullification. Jurors were not going to convict for any drug offenses because of this outlandish 100-to-1. So, race was part of it. And the numbers of people in prison prove that fact. ... If we're talking about narcotics and addiction, in dealing with it we ought to be race blind."

Scott Reeder, a staff writer for Illinois Times, can be reached at [email protected].