Hi, I'm Jason Flom. Normally I interview the victims of wrongful convictions with the aim to inform and inspire action, now we're launching a new series, Righteous Convictions, where I will speak with some of today's most prominent and active agents of change, people who see the wrong in the world and are driven to make it right. We will speak with this diverse group of thought leaders and change makers to hear the stories that forge their passion for all that they have done and plan to do.

Our first guest found his calling after he had already been elected to Congress in the 1980s, 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, one hundred to one. And they ended up sentencing her to 22 years in prison. I actually visited her in central jail. And I'll never, never forget Jason looking down in her tearful eyes. And she said to me, Senator, she let me go home to my babies. I'll never commit a crime again.

It's kind of thing that 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. 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 honored 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 an honor to work with you. But how did you first become so committed to reforming call it our injustice system.

Just let me tell you, as a member of the House of Representatives, I represented a Midwestern district in central Illinois, that small town America, the biggest city was Springfield, with one hundred thousand population and the total population of the district, around 600000. So there were a lot of small towns and rural areas generally conservative.

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 order, 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 nineteen eighty 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 remember as a politician. Along comes this narcotic. It's so cheap. It's five bucks a head. It's so addictive. It's destructive, particularly to mothers who are carrying babies and it's sweeping the country.

And there was a hue and 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, University of Maryland, Len 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 end to crack cocaine.

Then the message of the bill was very clear. Don't touch it. If you touch it and you're caught, you're going to end up with a criminal penalty, the likes of which you've never seen. We're going to hit you harder with this form of cocaine than anything else.

One hundred to one, one hundred to one between crack and powder cocaine. And 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.

I came to the Senate two 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 complicit in this as well. Here's a drug that we now know, of course, is 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 me privately your deep regret or even shame about it. But the difference is you've actually done something about it and you're continuing you in 2010.

Right. You sponsored the first mandatory sentencing rollback. And I think it was 40 years in America. Is that right?

I think you're right. I think that number is 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 are wrong, we're going to roll this back. Unfortunately, the best deal that the Republicans would agree to at the time was 18 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. 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 blunt about this. A release of someone who is going to go on a murderous rampage and make every politician who voted to release that person 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 in nineteen eighty six, grew to 200000 in 2009. And this had a lot to do with mandatory minimums and the one hundred to one ratio between crack and powder cocaine.

So when I finally got in to 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 one 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 the lives, we were putting people away by the hundreds of thousands under this mistaken part of the law.

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 in 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 got to give me a break on this thing. This 100 to one is terrible.

Well, he says the best I can do is 25 to one.

Oh, come on, Jeff. You know, bring it down to 10 to one. No, I can't do that. How about 15? No, how about 18? Well, OK. And you wonder how laws are made. That number 18 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 should have let you get to that later.

I'll never forget you telling me about having done a presentation in the Senate chamber. Am I am I remember correctly that you actually brought a death row cell into the chamber? Not in the chamber, but we had an illustration on the issue of solitary confinement, 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 an issue of solitary confinement. They all come together, Jason. I mean, they're connected one right to the other. The mandatory minimum sentences, one hundred to one, the solitary confinement we had hearing after hearing. And I brought people in to tell the story. I want to mention one very quickly. And it's one that you played such a key role as a private citizen. And her name was Eugenia Jennings. Eugenia Jennings was a poor woman who had had a horrible life experience.

She had three little babies. She sold crack cocaine court for the third time and they ended up sentencing her to twenty two years in prison. She was 23 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. And he told the story of Eugenia.

And it was such a sad and 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 holdovers in the Department of Justice who were not giving him good advice and certainly not reflecting his values. It turned out that I asked for commutation of Eugenia Jennings sentence, and he agreed it was the first commutation he had given as president.

And she was released in 2011 after having spent more than a decade in prison. I actually visit 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 that sticks with you for a lifetime. I want to make sure that's a better 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 graduate 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 to. How did it get this way? 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 and particularly American history, you can see the emergence from time to 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 clearly part of incarceration. 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. Interesting. At this moment, we were 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 and 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 at things more honestly. One of them is addiction itself. We've started to view addiction is 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 31 exonerations from death row in Florida and there have been 99 people executed. And then we know that there are innocent people who have been executed in Florida, people like Jessie Tafero. So in the state of Florida, they continue with this machinery of death, even though they're probably only getting it right about 60 percent of 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're 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 in the fact that the evidence that was presented was just plain 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 Seder with with people who are protesting. I say, what percentage of innocent people are you OK 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, that you being, of course, from Illinois, Illinois, having been sort of a hotbed for this. Right, where the Northwestern Law students and the law school found so many innocent people 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 have 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 guy 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 presidents over the last 20 years have said they were just not going to be engaged in the death penalty. It 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.

And so I joined with Congresswoman Pressley. And we have a bill that would end federal death penalty 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 low, right? It's under 50 percent. It is. And it's important to note the racial disparity. I just want to read something quickly here. The color of a defendant, a victim's skin plays a crucial and unacceptable role in deciding who receives the death penalty in America. People of color have accounted for a disproportionate 43 percent of total executions since 1976. Six fifty five percent of those currently awaiting execution.

It's even higher when you look at the U.S. military. It's 86 percent people of color in Colorado, 80 percent the U.S. government federal. It's. Seventy seven percent of people on death row are people of color. So I think it's critically important that you're going to put an end to this.

We reached a point where we started looking at the death penalty and saying to 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 a system of justice that ends up at that place. It was in nineteen ninety four that Supreme Court Justice Harry Blackmun said something which I 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. I agree with Justice Blackmun 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 and 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. And there's so many innocent people that Richard Glossop and Julius Jones, among others in Oklahoma. Anthony Parnevik in Ohio. There are innocent people on death row all over this country.

It's something that should trouble everyone of good conscience. I mean, it's exciting to see the public perception is 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 wave a magic wand and change the justice system to a more just system, what would you do?

That's an appropriate question. I will be officially named the chairman of the Senate Judiciary Committee. But on that committee for 22 years, waiting for this moment, I have the thinnest possible majority, 50 50 and 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 on 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 20 years ago that I introduced the DREAM Act. It 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 that 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 happen for the future of America.

Well, that 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 Flom. I'm honored to count you 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. OK, 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 Clyburn and Kevin Ward.

The music in this production was supplied by three time Oscar nominated composer J. 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 Lolla for good podcasts in association with Signal Company No. One.