[Congressional Record (Bound Edition), Volume 155 (2009), Part 18]
[Senate]
[Pages 24952-24958]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. FRANKEN:
  S. 1788. A bill to direct the Secretary of Labor to issue an 
occupational safety and health standard to reduce injuries to patients, 
direct-care registered nurses, and all other health care workers by 
establishing a safe patient handling and injury prevention standard, 
and for other purposes; to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. FRANKEN. Mr. President, today I am introducing a bill to help 
keep our country's invaluable nurses and health care workers safe from 
debilitating injuries suffered on the job. This legislation will 
require workplace standards that eliminate the manual lifting of 
patients--the primary cause of musculoskeletal disorders in the health 
care profession. And I want to first thank my colleague in the House, 
Representative Conyers of Michigan's l4th District, for his leadership 
on this issue and for the impressive work he put into crafting this 
bill.
  When we think of dangerous working conditions, mines or construction 
sites might come to mind. But in fact, work performed in hospitals and 
nursing homes contributes to thousands of cases of musculoskeletal 
disorders in nurses and health care workers each year. These injuries 
require time away from work, and unfortunately, many workers suffering 
from chronic back injury are forced to leave the profession 
permanently. Nurses and health care workers deserve better--they 
shouldn't have to sacrifice their safety and their livelihood to help 
others, especially when many of these injuries could be prevented.
  The manual lifting of patients is the primary cause of 
musculoskeletal injuries, and can be eliminated with the use of lifting 
equipment. Many health care facilities already have this equipment 
available, and studies have shown that it reduces injuries to workers, 
increases safety for patients, and is a cost-effective investment over 
several years.
  This legislation would require the Department of Labor to propose 
standards for safe patient handling to prevent musculoskeletal 
disorders for health care workers, and eliminate manual lifting of 
patients through the use of lift equipment. It would also require 
health care facilities to develop safe patient handling plans and 
provide training on safe patient handling techniques.
  Under the bill, health care workers would have the right to refuse 
assignments that are not in compliance with safe patient handling 
standards and be protected from employer retaliation against workers 
who refuse these assignments or report violations.
  To help health care facilities to make this transition, the bill 
creates a new grant program for needy health care facilities that 
require financial assistance to purchase safe patient handling 
equipment.
  I urge my colleagues to support the Nurse and Health Care Worker 
Protection Act. All of us benefit from the services these professionals 
provide, and by passing this legislation, we can help ensure they are 
able to safely continue in their important careers.
  Mr. President, I ask unanimous consent that the text of this bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1788

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; FINDINGS; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Nurse and 
     Health Care Worker Protection Act of 2009''.
       (b) Findings.--Congress finds the following:
       (1) In 2007, direct-care registered nurses ranked seventh 
     among all occupations for the number of cases of 
     musculoskeletal disorders resulting in days away from work--
     8,580 total cases. Nursing aides, orderlies, and attendants 
     sustained 24,340 musculoskeletal disorders in 2007, the 
     second highest of any occupation. The leading cause of these 
     injuries in health care are the result of patient lifting, 
     transferring, and repositioning injuries.
       (2) The physical demands of the nursing profession lead 
     many nurses to leave the profession. Fifty-two percent of 
     nurses complain of chronic back pain and 38 percent suffer 
     from pain severe enough to require leave from work. Many 
     nurses and other health care workers suffering back injury do 
     not return to work.
       (3) Patients are not at optimum levels of safety while 
     being lifted, transferred, or repositioned manually. 
     Mechanical lift programs can substantially reduce skin tears 
     suffered by patients and the frequency of patients being 
     dropped, thus allowing patients a safer means to progress 
     through their care.
       (4) The development of assistive patient handling equipment 
     and devices has essentially rendered the act of strict manual 
     patient handling unnecessary as a function of nursing care.
       (5) A growing number of health care facilities have 
     incorporated patient handling technology and have reported 
     positive results. Injuries among nursing staff have 
     dramatically declined since implementing patient handling 
     equipment and devices. As a result, the number of lost work 
     days due to injury and staff turnover has declined. Studies 
     have also shown that assistive patient handling technology 
     successfully reduces workers' compensation costs for 
     musculoskeletal disorders.
       (6) Establishing a safe patient handling and injury 
     prevention standard for direct-care registered nurses and 
     other health care workers is a critical component in 
     protecting nurses and other health care workers, addressing 
     the nursing shortage, and increasing patient safety.
       (c) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; findings; table of contents.
Sec. 2. Safe patient handling and injury prevention standard.
Sec. 3. Protection of direct-care registered nurses and health care 
              workers.
Sec. 4. Application of safe patient handling and injury prevention 
              standard to health care facilities not covered by OSHA.
Sec. 5. Financial assistance to needy health care facilities in the 
              purchase of safe patient handling and injury prevention 
              equipment.
Sec. 6. Definitions.

[[Page 24953]]



     SEC. 2. SAFE PATIENT HANDLING AND INJURY PREVENTION STANDARD.

       (a) Rulemaking.--Not later than 1 year after the date of 
     the enactment of this Act, the Secretary of Labor, shall, 
     pursuant to section 6 of the Occupational Safety and Health 
     Act of 1970 (29 U.S.C. 655), propose a standard on safe 
     patient handling and injury prevention (in this section such 
     standard referred to as the ``safe patient handling and 
     injury prevention standard'') under such section to prevent 
     musculoskeletal disorders for direct-care registered nurses 
     and all other health care workers handling patients in health 
     care facilities. A final safe patient handling and injury 
     prevention standard shall be promulgated not later than 2 
     years after the date of the enactment of this Act.
       (b) Requirements.--The safe patient handling and injury 
     prevention standard shall require the use of engineering 
     controls to perform lifting, transferring, and repositioning 
     of patients and the elimination of manual lifting of patients 
     by direct-care registered nurses and all other health care 
     workers, through the use of mechanical devices to the 
     greatest degree feasible except where the use of safe patient 
     handling practices can be demonstrated to compromise patient 
     care. The standard shall apply to all health care employers 
     and shall require at least the following:
       (1) Each health care employer to develop and implement a 
     safe patient handling and injury prevention plan within 6 
     months of the date of promulgation of the final standard, 
     which plan shall include hazard identification, risk 
     assessments, and control measures in relation to patient care 
     duties and patient handling.
       (2) Each health care employer to purchase, use, maintain, 
     and have accessible an adequate number of safe lift 
     mechanical devices not later than 2 years after the date of 
     issuance of a final regulation establishing such standard.
       (3) Each health care employer to obtain input from direct-
     care registered nurses, health care workers, and employee 
     representatives of direct-care registered nurses and health 
     care workers in developing and implementing the safe patient 
     handling and injury prevention plan, including the purchase 
     of equipment.
       (4) Each health care employer to establish and maintain a 
     data system that tracks and analyzes trends in injuries 
     relating to the application of the safe patient handling and 
     injury prevention standard and to make such data and analyses 
     available to employees and employee representatives.
       (5) Each health care employer to establish a system to 
     document in each instance when safe patient handling 
     equipment was not utilized due to legitimate concerns about 
     patient care and to generate a written report in each such 
     instance. The report shall list the following:
       (A) The work task being performed.
       (B) The reason why safe patient handling equipment was not 
     used.
       (C) The nature of the risk posed to the worker from manual 
     lifting.
       (D) The steps taken by management to reduce the likelihood 
     of manual lifting and transferring when performing similar 
     work tasks in the future.

     Such reports shall be made available to OSHA compliance 
     officers, workers, and their representatives upon request 
     within one business day.
       (6) Each health care employer to train nurses and other 
     health care workers on safe patient handling and injury 
     prevention policies, equipment, and devices at least on an 
     annual basis. Such training shall include providing 
     information on hazard identification, assessment, and control 
     of musculoskeletal hazards in patient care areas and shall be 
     conducted by an individual with knowledge in the subject 
     matter, and delivered, at least in part, in an interactive 
     classroom-based and hands-on format.
       (7) Each health care employer to post a uniform notice in a 
     form specified by the Secretary that--
       (A) explains the safe patient handling and injury 
     prevention standard;
       (B) includes information regarding safe patient handling 
     and injury prevention policies and training; and
       (C) explains procedures to report patient handling-related 
     injuries.
       (8) Each health care employer to conduct an annual written 
     evaluation of the implementation of the safe patient handling 
     and injury prevention plan, including handling procedures, 
     selection of equipment and engineering controls, assessment 
     of injuries, and new safe patient handling and injury 
     prevention technology and devices that have been developed. 
     The evaluation shall be conducted with the involvement of 
     nurses, other health care workers, and their representatives 
     and shall be documented in writing. Health care employers 
     shall take corrective action as recommended in the written 
     evaluation.
       (c) Inspections.--The Secretary of Labor shall conduct 
     unscheduled inspections under section 8 of the Occupational 
     Safety and Health Act of 1970 (29 U.S.C. 657) to ensure 
     implementation of and compliance with the safe patient 
     handling and injury prevention standard.

     SEC. 3. PROTECTION OF DIRECT-CARE REGISTERED NURSES AND 
                   HEALTH CARE WORKERS.

       (a) Refusal of Assignment.--The Secretary shall ensure that 
     a direct-care registered nurse or other health care worker 
     may refuse to accept an assignment from a health care 
     employer if--
       (1) the assignment would subject the worker to conditions 
     that would violate the safe patient handling and injury 
     prevention standard; or
       (2) the nurse or worker has not received training described 
     in section 2(a)(5) that meets such standard.
       (b) Retaliation for Refusal of Lifting Assignment Barred.--
       (1) No discharge, discrimination, or retaliation.--No 
     health care employer shall discharge, discriminate, or 
     retaliate in any manner with respect to any aspect of 
     employment, including discharge, promotion, compensation, or 
     terms, conditions, or privileges of employment, against a 
     direct-care registered nurse or other health care worker 
     based on the nurse's or worker's refusal of a lifting 
     assignment under subsection (a).
       (2) No filing of complaint.--No health care employer shall 
     file a complaint or a report against a direct-care registered 
     nurse or other health care worker with the appropriate State 
     professional disciplinary agency because of the nurse's or 
     worker's refusal of a lifting assignment under subsection 
     (a).
       (c) Whistleblower Protection.--
       (1) Retaliation barred.--A health care employer shall not 
     discriminate or retaliate in any manner with respect to any 
     aspect of employment, including hiring, discharge, promotion, 
     compensation, or terms, conditions, or privileges of 
     employment against any nurse or health care worker who in 
     good faith, individually or in conjunction with another 
     person or persons--
       (A) reports a violation or a suspected violation of this 
     Act or the safe patient handling and injury prevention 
     standard to the Secretary of Labor, a public regulatory 
     agency, a private accreditation body, or the management 
     personnel of the health care employer;
       (B) initiates, cooperates, or otherwise participates in an 
     investigation or proceeding brought by the Secretary, a 
     public regulatory agency, or a private accreditation body 
     concerning matters covered by this Act; or
       (C) informs or discusses with other individuals or with 
     representatives of health care employees a violation or 
     suspected violation of this Act.
       (2) Good faith defined.--For purposes of this subsection, 
     an individual shall be deemed to be acting in good faith if 
     the individual reasonably believes--
       (A) the information reported or disclosed is true; and
       (B) a violation of this Act or the safe patient handling 
     and injury prevention standard has occurred or may occur.
       (d) Complaint to Secretary.--
       (1) Filing.--A direct-care registered nurse, health care 
     worker, or other individual may file a complaint with the 
     Secretary of Labor against a health care employer that 
     violates this section within 180 days of the date of the 
     violation.
       (2) Response to complaint.--For any complaint so filed, the 
     Secretary shall--
       (A) receive and investigate the complaint;
       (B) determine whether a violation of this Act as alleged in 
     the complaint has occurred; and
       (C) if such a violation has occurred, issue an order that 
     sets forth the violation and the required remedy or remedies.
       (3) Remedies.--The Secretary shall have the authority to 
     order all appropriate remedies for such violations.
       (e) Cause of Action.--Any direct-care registered nurse or 
     other health care worker who has been discharged, 
     discriminated, or retaliated against in violation of this 
     section may bring a cause of action in a United States 
     district court. A direct-care registered nurse or other 
     health care worker who prevails on the cause of action shall 
     be entitled to the following:
       (1) Reinstatement, reimbursement of lost wages, 
     compensation, and benefits.
       (2) Attorneys' fees.
       (3) Court costs.
       (4) Other damages.
       (f) Notice.--A health care employer shall include in the 
     notice required under section 2(b)(7) an explanation of the 
     rights of direct-care registered nurses and health care 
     workers under this section and a statement that a direct-care 
     registered nurse or health care worker may file a complaint 
     with the Secretary against a health care employer that 
     violates the safe patient handling and injury prevention 
     standard, including instructions for how to file such a 
     complaint.
       (g) Addition to Current Protections.--The worker 
     protections provided for under this section are in addition 
     to protections provided in section 11(c) of the Occupational 
     Safety and Health Act of 1970 (29 U.S.C. 660(c)).

     SEC. 4. APPLICATION OF SAFE PATIENT HANDLING AND INJURY 
                   PREVENTION STANDARD TO HEALTH CARE FACILITIES 
                   NOT COVERED BY OSHA.

       (a) In General.--Section 1866 of the Social Security Act 
     (42 U.S.C. 1395cc) is amended--
       (1) in subsection (a)(1)(V), by inserting ``and safe 
     patient handling and injury prevention standard (as initially 
     promulgated under section 2 of the Nurse and Health Care

[[Page 24954]]

     Worker Protection Act of 2009)'' before the period at the 
     end; and
       (2) in subsection (b)(4)--
       (A) in subparagraph (A), inserting ``and the safe patient 
     handling and injury prevention standard'' after ``Bloodborne 
     Pathogens standard''; and
       (B) in subparagraph (B), inserting ``or the safe patient 
     handling and injury prevention standard'' after ``Bloodborne 
     Pathogens standard''.
       (b) Effective Date.--The amendments made by subsection (a) 
     shall apply to health care facilities 1 year after date of 
     issuance of the final safe patient handling and injury 
     prevention standard required under section 2.

     SEC. 5. FINANCIAL ASSISTANCE TO NEEDY HEALTH CARE FACILITIES 
                   IN THE PURCHASE OF SAFE PATIENT HANDLING AND 
                   INJURY PREVENTION EQUIPMENT.

       (a) In General.--The Secretary of Health and Human Services 
     shall establish a grant program that provides financial 
     assistance to cover some or all of the costs of purchasing 
     safe patient handling and injury prevention equipment for 
     health care facilities, such as hospitals, nursing 
     facilities, home health care, and outpatient facilities, 
     that--
       (1) require the use of such equipment in order to comply 
     with the safe patient handling and injury prevention 
     standard; but
       (2) demonstrate the financial need for assistance for 
     purchasing the equipment required under such standard.
       (b) Application.--No financial assistance shall be provided 
     under this section except pursuant to an application made to 
     the Secretary of Health and Human Services in such form and 
     manner as the Secretary shall specify.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated for financial assistance under this 
     section $200,000,000, of which $50,000,000 will be available 
     specifically for home health agencies or entities. Funds 
     appropriated under this subsection shall remain available 
     until expended.

     SEC. 6. DEFINITIONS.

       For purposes of this Act:
       (1) Direct-care registered nurse.--The term ``direct-care 
     registered nurse'' means an individual who has been granted a 
     license by at least one State to practice as a registered 
     nurse and who provides bedside care or outpatient services 
     for one or more patients or residents.
       (2) Health care worker.--The term ``health care worker'' 
     means an individual who has been assigned to lift, 
     reposition, or move patients or residents in a health care 
     facility.
       (3) Employment.--The term ``employment'' includes the 
     provision of services under a contract or other arrangement.
       (4) Health care employer.--The term ``health care 
     employer'' means an outpatient health care facility, 
     hospital, nursing home, home health care agency, hospice, 
     federally qualified health center, nurse managed health 
     center, rural health clinic, or any similar health care 
     facility that employs direct-care registered nurses or other 
     health care workers.
                                 ______
                                 
      By Mr. DURBIN (for himself, Mr. Leahy, Mr. Specter, Mr. Feingold, 
        Mr. Cardin, Mr. Whitehouse, Mr. Kaufman, Mr. Franken, Mr. Dodd, 
        Mr. Kerry, and Mr. Levin):
  S. 1789. A bill to restore fairness to Federal cocaine sentencing; to 
the Committee on the Judiciary.
  Mr. DURBIN. Mr. President, I rise to speak about the Fair Sentencing 
Act of 2009, which I am introducing today.
  This narrowly tailored bill would eliminate the sentencing disparity 
that exists in the United States between crack cocaine and powder 
cocaine. At the same time, it would increase penalties for the worst 
offenders for crimes involving these substances. It accomplishes two 
very important goals: One goal is to restore fairness to drug 
sentencing and, second, to focus our limited Federal resources on the 
most effective way to end violent drug trafficking.
  I have cast thousands of votes as a Member of the House of 
Representatives and the Senate. Most of those votes are kind of lost in 
the shadows of history. Some were historic, relative to going to war 
and impeachment issues, and you never forget those.
  But there was one vote I cast more than 20 years ago which I regret. 
It was a vote that was cast by many of us in the House of 
Representatives, when we were first informed about the appearance of a 
new narcotic on the streets. It was called crack cocaine. It was so 
cheap it was going to be plentiful, and it was so insidious--or at 
least we were told that 20 years ago--we were advised to take notice 
and do something dramatic and we did.
  More than 20 years ago, I joined many Members of Congress from both 
political parties in voting for the Anti-Drug Abuse Act of 1986. It 
established the Federal cocaine sentencing framework that is still in 
place today.
  Under this law, it takes 100 times more powder cocaine than crack 
cocaine to trigger the same 5-to-10-year mandatory minimum sentence. 
This is known as the 100-to-1 crack/powder sentencing disparity. But 
that phrase doesn't tell the story. Here is the story. Simply 
possessing 5 grams of crack, which is the equivalent of holding five 
packets of sugar or Equal or one of the sugar substitutes, simply 
possessing that small amount of crack cocaine under the current 
sentencing framework carries the same sentence as selling--not 
possessing but selling--500 grams of powder cocaine--the equivalent of 
500 packets of sugar. Why? Well, because we believed we were dealing 
with a different class of narcotics; something that was much more 
dangerous and should be treated much more harshly.
  Make no mistake, cocaine--whether in crack or powder form--has a 
devastating impact on families and on our society and we need to have 
tough legislation when it comes to narcotics. But in addition to being 
tough, our drug laws have to be fair.
  Right now, our cocaine laws are based on a distinction between crack 
and powder cocaine which cannot be justified. Our laws don't focus on 
the most dangerous offenders. Incarcerating for 5 to 10 years people 
who are possessing five sugar packets' worth of crack cocaine for the 
same period of time as those who are selling 500 sugar-size packets of 
powder cocaine is indefensible.
  The Fair Sentencing Act, which I am introducing today, would 
completely eliminate this crack/powder disparity. It establishes the 
same sentences for crack and powder--a 1-to-1 sentencing ratio.
  Those of us who supported the law establishing this disparity had 
good intentions. We followed the lead and advice of people in law 
enforcement. We wanted to address this crack epidemic that was 
spreading fear and ravaging communities. But we have learned a great 
deal in the last 20 years. We now know the assumptions that led us to 
create this disparity were wrong.
  Vice President Joe Biden, one of the authors of the legislation 
creating this disparity in sentencing, has said: ``Each of the myths 
upon which we based the disparity has since been dispelled or 
altered.''
  Earlier this year, I held a hearing in the Senate Judiciary Committee 
on this disparity in sentencing and we learned the following: Crack is 
not more addictive than powder cocaine, and crack cocaine offenses do 
not involve significantly more violence than powder cocaine offenses. 
Those were the two things that led us to this gross disparity in 
sentencing between powder cocaine and crack cocaine. We were told it is 
different; it is more addictive. It is not. We were also told it was 
going to create conduct which was much more violent than those who were 
selling powder cocaine and their activities. It did not.
  We have also learned that more than 2.3 million people are imprisoned 
in America today. That is the most prisoners and the highest per capita 
rate of prisoners of any country in the world, and it is largely due to 
the incarceration of nonviolent drug offenders in America. African 
Americans are incarcerated at nearly six times the rate of White 
Americans. These are issues of fundamental human rights and justice our 
country must face.
  It is important to note that the crack/powder disparity 
disproportionately affects African Americans. While African Americans 
constitute less than 30 percent of crack users, they make up 82 percent 
of those convicted of Federal crack offenses.
  At a hearing I held, we heard compelling testimony from Judge Reggie 
B. Walton, who was Associate Director of the Office of Drug Control 
Policy under President George H.W. Bush and was appointed by President 
George W. Bush to the Federal bench. Judge Walton is an African 
American, and he testified

[[Page 24955]]

about ``the agony of having to enforce a law that one believes is 
fundamentally unfair and disproportionately impacts individuals who 
look like me.''
  We also heard about the negative impact the crack/powder disparity 
has on the criminal justice system. Judge Walton further testified 
about ``jurors who would tell me that they refused to convict, that 
even though they thought the evidence was overwhelming, they were not 
prepared to put another young black man in prison knowing the 
sentencing disparity that existed between crack and powder cocaine.''
  Asa Hutchinson, who was head of the Drug Enforcement Administration 
under President George W. Bush, testified: ``Under the current 
disparity, the credibility of our entire drug enforcement system is 
weakened.''
  The crack disparity also diverts resources away from the prosecution 
of large-scale drug traffickers. In fact, more than 60 percent of 
defendants convicted of Federal crack crimes are street-level dealers 
or mules.
  During these difficult economic times, it is also important to note 
that the crack/powder disparity has placed an enormous burden on 
taxpayers and the prison system. Based on the Bureau of Prison's 
estimates of the annual costs of incarceration and the U.S. Sentencing 
Commission's projections of the number of prison beds reduced per year, 
we know that eliminating this disparity could save more than $510 
million in prison beds over 15 years.
  There is widespread and growing agreement that the Federal cocaine 
and sentencing policy in the United States today is unjustified and 
unjust.
  At the hearing I held on the crack/powder disparity, Lanny Breuer, 
the Assistant Attorney General of the Criminal Division, announced that 
the Justice Department and this administration support completely 
eliminating the crack/powder disparity and establishing a 1-to-1 ratio, 
which is included in my bill.
  In June, Attorney General Eric Holder testified before the Senate 
Judiciary Committee. I asked him about this issue and here is what he 
said.

       When one looks at the racial implications of the crack-
     powder disparity, it has bred disrespect for our criminal 
     justice system. It has made the job of those of us in law 
     enforcement more difficult. . . . [I]t is time to do away 
     with that disparity.

  Here on Capitol Hill, Democrats and Republicans alike have advocated 
fixing the disparity for years.
  The following 10 Senators are original cosponsors of the Fair 
Sentencing Act: Senator Patrick Leahy, the Chairman of the Judiciary 
Committee, who for years has advocated for drug sentencing reform; 
Senator Arlen Specter, the Chair of the Judiciary Committee's Crime and 
Drugs Subcommittee; Five other members of the Senate Judiciary 
Committee--Senators Russ Feingold, Ben Cardin, Sheldon Whitehouse, Ted 
Kaufman, and Al Franken; and Senators John Kerry, Chris Dodd, and Carl 
Levin.
  I would also like to recognize at this point, though he is not a 
cosponsor of the bill, Senator Jeff Sessions, the ranking member of the 
Judiciary Committee. He has been a leader in calling for reform of 
crack/powder sentencing policy.
  The Senator from Alabama is a former U.S. attorney, not known to be 
soft on crime in any way, shape, or form, but he was one of the first 
to speak out about the injustice of the crack/powder disparity. I 
continue my dialog with Senator Sessions in the hope that he and I can 
come to a common place with regard to this important issue.
  There is a bipartisan consensus about the need to fix the crack-
powder disparity. I have been in discussions with Chairman Leahy and 
Ranking Member Sessions, as well as Republican Senators Lindsey Graham, 
Orrin Hatch, and Tom Coburn, and I am confident that the Judiciary 
Committee can come together to find a bipartisan solution to this 
problem.
  A broad coalition of legal, law enforcement, civil rights, and 
religious leaders and groups from across the political spectrum 
supports eliminating the crack-powder disparity, including, for 
example: Los Angeles Police Chief Bill Bratton, Miami Police Chief John 
Timoney, The American Bar Association, The Leadership Conference on 
Civil Rights, The National Black Police Association, and The United 
Methodist Church.
  The bipartisan United States Sentencing Commission has been urging 
Congress to act for 15 years. They have argued that fixing the crack-
powder disparity ``would better reduce the [sentencing] gap [between 
African Americans and whites] than any other single policy change, and 
it would dramatically improve the fairness of the federal sentencing 
system.'' The Sentencing Commission has repeatedly recommended that 
Congress take two important steps: No. 1, reduce the sentencing 
disparity by increasing the quantities of crack cocaine that trigger 
mandatory minimum sentences; and No. 2, eliminate the mandatory minimum 
penalty for simple possession of crack cocaine. This is the only 
mandatory minimum sentence for simple possession of a drug by a first 
time offender.
  The bill that I have introduced does both those things.
  In order to ensure that limited Federal resources are directed toward 
the largest drug traffickers and the most violent offenders, not just 
those guilty of simple possession and a first offense, the Fair and 
Sentencing Act provides for increased penalties for drug offenses 
involving vulnerable victims, violence and other aggravating factors.
  For example, an individual being prosecuted for possessing either 
crack or powder cocaine will face more jail time if he: uses or 
threatens to use violence; uses or possesses a dangerous weapon; is a 
manager, leader or organizer of drug trafficking activities; or 
distributes drugs to a pregnant woman or minor.
  The bill would also increase the financial penalties for drug 
trafficking. This sentencing structure will shift Federal resources 
towards violent traffickers and away from nonviolent drug users who are 
best dealt with at the State level.
  In the final analysis, this legislation is about fixing an unjust law 
that has taken a great human toll. At the hearing I held in the 
Judiciary Committee, we heard testimony from Cedric Parker, who is from 
Alton in my home State of Illinois. In 2000, Mr. Parker's sister, 
Eugenia Jennings, was sentenced to 22 years in prison for selling 14 
grams of crack cocaine. Mr. Parker told us that Eugenia was physically 
and sexually abused from a young age. She was addicted to crack by the 
time she was 15.
  Eugenia has three children, Radley, Radeisha, and Cardez. They are 
now 11, 14, and 15. These children were 2, 5, and 6 when their mother 
went to prison for selling the equivalent of 6 sugar cubes of crack. 
They have seen their mother once in the last 9 years. They will be 21, 
24, and 25 when she is released in 2019.
  At Eugenia's sentencing, Judge Patrick Murphy said this:

       Mrs. Jennings, nobody has ever been there for you when you 
     needed it. When you were a child and you were being abused, 
     the Government wasn't there. But when you had a little bit of 
     crack, the government was there. And it is an awful thing, an 
     awful thing to separate a mother from her children. That's 
     what the Government has done for Eugenia Jennings.

  It is time to right this wrong. We have talked about the need to 
address the crack-powder disparity for long enough. Now, it's time to 
act. I urge my colleagues to join me in supporting the Fair Sentencing 
Act of 2009.
  Mr. SESSIONS. Mr. President, I see my colleague, the assistant 
majority leader. I know we have been talking about improvement in the 
sentencing process for crack cocaine. I have offered legislation for 
almost a decade that would substantially improve the sentencing process 
in a way that I think is fair and constructive and allows us to deal 
with serious criminals like drug dealers. I believe it is pretty close 
to being a good policy. Senator Salazar, now a member of the Obama 
Cabinet, and Senator Mark Pryor, my Democratic colleague from Arkansas, 
Senator John Cornyn from Texas, and I, all four former attorneys 
general, offered that legislation. Senator Durbin

[[Page 24956]]

has some ideas too. I look forward to working with him. I do think it 
is past time to act.
  I will not favor alterations that massively undercut the sentencing 
we have in place, but I definitely believe that the current system is 
not fair and that we are not able to defend the sentences that are 
required to be imposed under the law today.
  I am a strong believer in law enforcement and prosecution of those 
who violate our laws, particularly criminals who really do a lot of 
damage beyond just dealing drugs. They foster crime and form gangs. 
People who use cocaine tend to be violent. Even more, in some ways, 
people who use crack cocaine, as opposed to powder cocaine, tend to be 
paranoid and violent. It is not a good thing.
  We don't need to give up the progress that has been made, but at the 
same time we need to fix the sentencing. I oppose anything that 
represents a 50, 60, 70, or 80 percent reduction in penalties but a 
significant rebalancing of that would be justified.
  Mr. LEAHY. Mr. President, today, I am proud to join Senators Durbin, 
Specter, Feingold, Cardin, Whitehouse, Kaufman, Franken, and others to 
introduce the Fair Sentencing Act of 2009. Our bill will eliminate the 
current 100-to-1 disparity between Federal sentences for crack and 
powder cocaine, equalizing the penalties for both forms of cocaine. I 
hope that this legislation will finally enable us to address the racial 
imbalance that has resulted from the cocaine sentencing disparity, as 
well as to make our drug laws more fair, more rational, and more 
consistent with our core values of justice.
  I commend Senator Durbin for his leadership in fixing this decades-
old injustice. He chaired a hearing before our Crime and Drugs 
Subcommittee six months ago to examine this issue where we heard from 
the Assistant Attorney General for the Criminal Division at the Justice 
Department. We should do what we can to restore public confidence in 
our criminal justice system. Correcting biases in our criminal 
sentencing laws is a step in that direction.
  Today, the criminal justice system has unfair and biased cocaine 
penalties that undermine the Constitution's promise of equal treatment 
for all Americans. For more than 20 years, our Nation has used a 
Federal cocaine sentencing policy that treats ``crack'' offenders one 
hundred times more harshly than other cocaine offenders without any 
legitimate basis for the difference. We know that there is little or no 
pharmacological distinction between crack and powder cocaine, yet the 
resulting punishments for these offenses is radically different and the 
resulting impact on minorities has been particularly unjust.
  Under this flawed policy, a first-time offender caught selling five 
grams of powder cocaine typically receives a 6 month sentence, and 
would often be eligible for probation. That same first-time offender 
selling the same amount of crack faces a mandatory five year prison 
sentence, with little or no possibility of leniency. This policy is 
wrong and unfair, and it has needlessly swelled our prisons, wasting 
precious Federal resources.
  Even more disturbingly, this policy has had a significantly disparate 
impact on racial and ethnic minorities. According to the latest 
statistics assembled by the United States Sentencing Commission, 
African-American offenders continue to make up the large majority of 
Federal crack cocaine offenders, accounting for 80 percent of all 
Federal crack cocaine offenses, compared to white offenders who account 
for just 10 percent. These statistics are startling. It is no wonder 
this policy has sparked a nationwide debate about racial bias and 
undermined citizens' confidence in the justice system.
  These penalties, which Congress created in the mid-1980s, have failed 
to address basic concerns. The primary goal was to punish the major 
traffickers and drug kingpins who were bringing crack into our 
neighborhoods. But the law has not been used to go after the most 
serious offenders. In fact, just the opposite has happened. The 
Sentencing Commission has consistently reported for many years that 
more than half of Federal crack cocaine offenders are low-level street 
dealers and users, not the major traffickers Congress intended to 
target.
  The Fair Sentencing Act of 2009 would return the focus of Federal 
cocaine sentencing policy to drug kingpins, rather than street level 
dealers, and address the racial disparity in cocaine sentencing. The 
legislation we introduce today would align crack and powder cocaine 
sentences by setting the mandatory minimum sentencing triggers at the 
same levels. This equalization is a sound way to address the unjust 
sentencing disparity between crack and powder cocaine.
  We have heard calls for this reform from Senators on both sides of 
the aisle. Senator Hatch, who has called the current ratio ``an 
unjustifiable disparity,'' recognizes that because ``crack and powder 
cocaine are pharmacologically the same drug'' our sentencing laws do 
``not warrant such an extreme disparity.'' Even Senator Sessions, now 
the ranking Republican member of the Judiciary Committee, has called 
the 100-to-1 disparity in sentencing between crack cocaine and powder 
cocaine ``not justifiable'' and called for changes to make the criminal 
justice system more effective and fair.
  The legislation we introduce today would also eliminate the mandatory 
minimum sentence for possession of crack cocaine. The 5-year mandatory 
minimum sentence penalty for simple possession of crack is unique under 
Federal law. There is no other mandatory minimum for mere simple 
possession of a drug. This bill would correct this inequity, as well. 
Still, the Federal penalties for drug crimes remain very tough. This 
bill toughens some of those penalties. It would increase fines for 
major drug traffickers, as well as provide sentencing enhancements for 
acts of violence committed during the course of a drug trafficking 
offense. As a former prosecutor, I support strong punishments for drug 
traffickers.
  This legislation already has support from a broad coalition of 
groups, including the American Bar Association, the NAACP, the ACLU, 
Families Against Mandatory Minimums, the Sentencing Project, the United 
Methodist Church, and many more.
  While serving in the Senate, in September 2007, then-Senator Obama 
said:

       If you are convicted of a crime involving drugs, of course 
     you should be punished. But let's not make the punishment for 
     crack cocaine that much more severe than the punishment for 
     powder cocaine when the real difference is where the people 
     are using them or who is using them.

  I agree. And the Justice Department agrees as well, as Assistant 
Attorney General Lanny Breuer announced at our hearing this spring.
  For over 20 years, the ``crack-powder'' disparity in the law has 
contributed to swelling prison populations without focusing on the drug 
kingpins. We must be smarter in our Federal drug policy. Law 
enforcement has been and continues to be a central part of our efforts 
against illegal drugs, but we must also find meaningful, community-
based solutions.
  American justice is about fairness for each individual. To have faith 
in our system Americans must have confidence that the laws of this 
country, including our drug laws, are fair and administered fairly. I 
believe the Fair Sentencing Act of 2009 will move us one step closer to 
reaching that goal. I urge all Senators to support this measure.
  Mr. SPECTER. Mr. President, I have sought recognition to urge support 
for the legislation introduced today by Senator Durbin to completely 
eliminate the unfair and unwarranted sentencing disparity between crack 
and powder cocaine. I am an original co-sponsor of this bill.
  Since the passage of the Anti-Drug Abuse Act of 1986, which 
established the basic framework of mandatory minimum penalties 
currently applicable to Federal drug trafficking offenses, there exists 
a 100-to-1 ratio between crack and powder cocaine. That means it takes 
100 times as much powder cocaine as crack to trigger the same 5-year 
and 10-year mandatory minimum penalties.

[[Page 24957]]

  On April 29, 2009, 6 witnesses testified before the Senate Judiciary 
Subcommittee on Crime and Drugs regarding the sentencing disparity 
between crack and powder cocaine, including the Assistant Attorney 
General for the Criminal Division at the Department of Justice, the 
Acting Chair of the U.S. Sentencing Commission, a U.S. District Court 
Judge representing the Judicial Conference of the U.S. Courts, and a 
Police Commissioner from a major urban city. All six witnesses 
testified in favor of an immediate reduction or elimination of this 
disparity.
  At the time Congress established the crack-powder disparity in 1986, 
it did so because it was believed that crack was uniquely addictive and 
was associated with greater levels of violence than powder cocaine.
  Today, more than 20 years later, research has shown that the 
addictive qualities of crack have more to do with its mode of 
administration--smoking compared to inhaling--rather than its chemical 
structure. Moreover, recent studies suggest that levels of violence 
associated with crack are stable or even declining.
  Last year, 80.6 percent of crack offenders were African Americans, 
while only 10.2 percent were white. Compare that with powder cocaine 
prosecutions. For that same year, 30.25 percent of powder cocaine 
offenders were African Americans, 52.5 percent were Hispanic, and 16.4 
percent were white. The average sentence for crack offenders is 2 years 
longer than the average sentence for powder cocaine.
  Let me repeat that. African Americans, who make up approximately 12.3 
percent of the population in the U.S., comprise 80.6 percent of the 
Federal crack offenders.
  It takes about $14,000 worth of powder cocaine compared to only about 
$150 of crack to trigger the 5-year mandatory minimum penalty. Given 
that crack and cocaine powder are the same drug--just in different 
forms--why should we impose the same 5-year sentence for the $150 drug 
deal as for the $14,000 drug deal?
  These sentencing disparities undermine the confidence in the criminal 
justice system. Our courts and our laws must be fundamentally fair; 
just as importantly, they must be perceived as fair by the public. I do 
not believe that the 1986 Act was intended to have a disparate impact 
on minorities but the reality is that it does.
  The White House and the Department of Justice have asked Congress to 
eliminate this unfair sentencing disparity. It is time to correct this 
injustice.
                                 ______
                                 
      By Mr. DORGAN (for himself, 
        Mr. Reid, Ms. Murkowski, 
        Mr. Udall of New Mexico, 
        Mr. Whitehouse, Mr. Johnson, Mr. Tester,  Mr. Akaka, 
        Mr. Conrad, Mr. Begich, 
        Mr. Franken, Mr. Burris, 
        Mr. Inouye, Ms. Stabenow, 
        Mr. Udall of Colorado, and Ms. Klobuchar):
  S. 1790. A bill to amend the Indian Health Care Improvement Act to 
revise and extend that Act, and for other purposes; to the Committee on 
Indian Affairs.
  Mr. DORGAN. Mr. President, today I introduced the Indian Health Care 
Improvement Reauthorization and Extension Act of 2009. We face a bona 
fide crisis in health care in our Native American communities, and this 
bill is a first step toward fulfilling our treaty obligations and trust 
responsibility to provide quality health care in Indian Country. I 
introduce this bill on behalf of myself, Leader Reid and Senators 
Murkowski, Udall of New Mexico, Begich, Franken, Whitehouse, Inouye, 
Akaka, Johnson, Tester, Conrad, Burris, Stabenow, Udall of Colorado, 
and Klobuchar.
  As Chairman of the Senate Committee on Indian Affairs, I have again 
made health care a top priority for the Committee this Congress. Native 
Americans suffer staggering health disparities due to an outdated, 
strained and underfunded health care system. We have a federal health 
care system for Native Americans that is only funded at about half of 
its need. Clinician vacancy rates within this system are high and 
misdiagnosis is rampant. Only those with ``life or limb'' emergencies 
seem to get care. Native Americans die of tuberculosis at a rate 600 
percent higher than the general population, suicide rates are nearly 
double, alcoholism rates are 510 percent higher, and diabetes rates are 
189 percent higher than the general population.
  These numbers are appalling and represent Third World conditions 
right here in the U.S.
  I have heard the heartbreaking stories about the lack of health care 
on our Native American reservations: people like Ta'shon Rain 
Littlelight, Jami Rose Jetty, Russell Lente and Avis Little Wind, who 
likely still would be living today had they had access to adequate 
health care. Our Federal system has failed them and so many other 
Native Americans. We owe our First Americans something better, and the 
bill I introduced today with my colleagues will provide a better 
system.
  For over a decade, Indian Country has asked Congress to reauthorize 
and amend the Indian Health Care Improvement Act, P.L. 94-437. The 
National Steering Committee for Reauthorization, National Congress of 
American Indians, National Indian Health Board, and other Native 
American health advocates have been dedicated to improving the health 
care available to Native Americans across the country. I too am 
committed to ensuring the United States fulfills its trust 
responsibility to provide decent health care to the Native Americans.
  Last Congress, the Senate passed the Indian Health Care Improvement 
Act Amendments of 2008, which would have brought needed improvements to 
the Native American health care system. The bill passed by an 
overwhelming 83 to 10 vote. This was the first time in almost 17 years 
that the Senate considered and passed a Native American health care 
bill. Ultimately, the bill failed to be considered in the House of 
Representatives. My colleagues and I remain committed to getting a bill 
enacted into law.
  In July, I developed a Native American health concept paper which was 
sent out to Indian Country for comments. I and the Committee on Indian 
Affairs held many listening sessions and meetings with many Native 
Americans around the country to discuss the concept paper. In addition, 
the Committee has held five hearings focused on Native American health 
issues this Congress. The Committee has worked to compile the feedback 
received from the concept paper and other meetings to develop the 
Native American health bill I introduced today.
  Similar legislation has been considered in the 106, 107, 108, 109, 
and 110 Congresses. Today, my colleagues and I put forward a Native 
American health bill for the 111 Congress which builds on the work of 
prior Congresses, but goes beyond to include innovative solutions and 
reforms for the Native American health care system.
  I would like to highlight some of the important updates the Indian 
Health Care Improvement Reauthorization and Extension Act of 2009 will 
bring to the Native American health care system.
  Perhaps most importantly, the Native American health bill permanently 
reauthorizes all current laws governing the Native American health care 
system. This means that once this bill is passed, Indian Country will 
never again have to wait nearly 20 years for a reauthorization of the 
Indian Health Care Improvement Act.
  This bill also authorizes long-term care services, including hospice 
care, assisted living, long-term care and home- and community-based 
care. Current law does not allow for these services to be provided by 
the Indian Health Service or tribal facilities. Although some areas of 
Indian Country are merely focused on addressing life or limb medical 
emergencies, other areas are in need of long-term care. Thus, I believe 
they should be authorized.
  In addition, the bill establishes mental and behavioral health 
programs beyond alcohol and substance abuse, such as fetal alcohol 
spectrum disorders, child sexual abuse and prevention treatment 
programs. The mental health needs in Native American communities extend 
beyond alcohol and

[[Page 24958]]

substance abuse, in fact over \1/3\ of the health care needs in Indian 
Country are related to mental health. The comprehensive mental and 
behavioral health programs established as a result of this bill will 
bring necessary care and resources to Native Americans.
  In order to address the tragic level of youth suicide, the bill 
includes behavioral health provisions solely focused on preventing 
Native American youth suicide. The youth suicide rate in Indian Country 
is 3.5 times higher than the general population. Earlier this year, I 
chaired an Indian Affairs hearing to draw attention to this important 
topic.
  The bill also incorporates many new ideas aimed at improving the 
access to health care available to Native Americans. The bill 
authorizes projects which will incentivize tribes to use innovative 
facilities construction which save money and expand the health care 
services available to Native American communities. For example, these 
projects include the use of modular component facility construction and 
mobile health stations.
  Modular component health facilities can be built at often one-third 
the cost and a fraction of the time of a typical health facility. In 
addition, mobile health stations will allow for Native Americans in 
rural areas without a hospital, increased access to specialty health 
services like dialysis, same-day surgery, dental care, or other 
services. Currently, there is an estimated $3 billion backlog for 
maintenance, improvement and construction of Native American health 
care facilities. In addition, the average age of an Indian Health 
Service facility is 33 years, as compared to 7 years in the general 
population. These innovative health care facilities will go a long way 
in this disparity and improving access to health care for Native 
Americans across the country.
  The Native American health bill establishes a health delivery 
demonstration project. This project provides for convenient care 
services, which could be offered in local grocery stores and other 
venues, to make health care more available to Native American 
communities. The health delivery demonstration project authorizes the 
Indian Health Service to consider other innovative health delivery 
models, like community health centers, and other models which will 
increase access to health care services.
  I want to end by saying the need for health care is not new for 
Indian Country. Nowadays, the need for national health care reform is 
front page news, but our Native Americans have long been in need of 
health care reforms. Therefore, I intend to offer this Native American 
health bill as an amendment to any national health care reform bill 
considered on the Senate floor.
  I want to thank all the Native American health advocates who assisted 
us in the development of this crucial piece of legislation. The Federal 
Government signed the dotted lines years ago, and today, we make an 
important step towards finally fulfilling those obligations.

                          ____________________