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by Robin Fields and Maya Miller

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Update, March 5, 2024: After this story was published, the bill was introduced.

Spurred by a ProPublica story about an insurer that denied coverage of the only therapy that could have saved the life of a 50-year-old father of two, a Michigan lawmaker plans to introduce a bill Tuesday requiring health plans in the state to cover cutting-edge cancer treatments.

In February 2020, Forrest VanPatten died fighting Priority Health, one of Michigan’s largest health insurers, over its refusal to pay for CAR-T cell therapy, his last-chance treatment. The therapy works by genetically reengineering patients’ own cells, then infusing them back into the body to beat back their disease.

Michigan has long required insurers to cover proven cancer treatments, but according to internal emails, some Priority Health executives argued that CAR-T was a gene therapy, not a drug, and thus not subject to the state’s coverage mandate.

State Sen. Jeff Irwin, D-Ann Arbor, plans to file the new bill to make explicit that Michigan’s cancer treatment coverage mandate includes a new generation of genetic and immunotherapies, including CAR-T.

Earlier this year, Michigan’s top insurance regulator told health plans they had to cover these treatments. Irwin’s measure would codify that guidance, ensuring it’s not dependent on one regulator’s interpretation of the law. He said he wanted the state’s requirements to be abundantly clear to both patients and insurers.

“I feel that the insurance company in this case was painting outside the lines,” Irwin said Monday in an interview. “This change that we’re making, I think, is going to make it hard to impossible for someone to make that same decision again around these particular treatments.”

The bill’s introduction was bittersweet for the VanPatten family. “If this helps any other family, any other person, we are all for it,” said Betty VanPatten, Forrest’s widow. “It just feels like they got one over on everybody.” Betty and her children said they hope Priority Health faces repercussions for the decision to deny coverage for Forrest’s treatment.

Priority Health’s decision not to pay for CAR-T cancer treatments was almost entirely motivated by the medication’s high cost, former employees told ProPublica. “It was, ‘This was really expensive, how do we stop payment?’” recalled Dr. John Fox, Priority Health’s associate chief medical officer at the time.

When the Food and Drug Administration approved the first CAR-T therapy in 2017, Fox tried unsuccessfully to persuade executives at Priority Health to cover it, citing Michigan’s law. He left his position with the health plan in 2019, in large part because he was disillusioned with the company’s decision not to pay for life-prolonging cancer therapies.

In an earlier statement to ProPublica, Priority Health said that “there was a lack of consensus in the medical community regarding the treatment” when it was first approved, and that the company began offering coverage after “extensive clinical work improved the treatment.” But well before VanPatten’s doctors requested Priority Health’s approval for the treatment in early 2020, an alliance of leading U.S. cancer treatment centers concluded there was substantial consensus about the treatment’s efficacy.

Asked about Irwin’s bill, Priority Health spokesperson Mark Geary said in a written statement that the company complies with all existing federal and state laws and has been providing coverage for CAR-T cell therapy for several years. “We also stand ready to continue to work with lawmakers and regulators in Michigan to find ways to offer Michiganders affordable access to effective, evidence-based treatments and procedures,” Geary wrote.

In the aftermath of ProPublica’s story, several Michigan lawmakers called out the state’s insurance department for not investigating Priority Health’s actions in the VanPatten case and failing to enforce the law that requires coverage of cancer drugs.

Regulators acknowledged they hadn’t cited a single Michigan insurer for violating the mandate since it was created in 1989.

Under existing law, the Michigan Department of Insurance and Financial Services can levy fines against insurers that fail to comply and can even suspend or revoke their licenses.

In an emailed statement, Communications Director Laura Hall said the agency anticipated backing Irwin’s proposal. The department, she wrote, “supports efforts to embed protections for cancer patients in state law.”

If Irwin’s proposal passes, not all Michigan health plans will have to follow it. Some employers pay directly for workers’ health care, hiring insurers to process claims. These plans are regulated by the federal government and are exempt from state coverage requirements, though some follow them voluntarily.

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by Anna Maria Barry-Jester

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Karmin Strohfus, the lead nurse at a South Dakota jail, punched numbers into a phone like lives depended on it. She had in her care a pregnant woman with syphilis, a highly contagious, potentially fatal infection that can pass into the womb. A treatment could cure the woman and protect her fetus, but she couldn’t find it in stock at any pharmacy she called — not in Hughes County, not even anywhere within an hour’s drive.

Most people held at the jail where Strohfus works are released within a few days. “What happens if she gets out before I’m able to treat her?” she worried. Exasperated, Strohfus reached out to the state health department, which came through with one dose. The treatment required three. Officials told Strohfus to contact the federal Centers for Disease Control and Prevention for help, she said. The risks of harm to a developing baby from syphilis are so high that experts urge not to delay treatment, even by a day.

Nearly three weeks passed from when Strohfus started calling pharmacies to when she had the full treatment in hand, she said, and it barely arrived in time. The woman was released just days after she got her last shot.

Last June, Pfizer, the lone U.S. manufacturer of the injections, notified the Food and Drug Administration of an “impending stock out” that it anticipated would last a year. The company blamed “an increase in syphilis infection rates as well as competitive shortages.”

Across the country, physicians, clinic staff and public health experts say that the shortage is preventing them from reining in a surge of syphilis and that the federal government is downplaying the crisis. State and local public health authorities, which by law are responsible for controlling the spread of infectious diseases, report delays getting medicine to pregnant people with syphilis. This emergency was predictable: There have been shortages of this drug in eight of the last 20 years.

Yet federal health authorities have not prevented the drug shortages in the past and aren’t doing much to prevent them in the future.

Syphilis, which is typically spread during sex, can be devastating if it goes untreated in pregnancy: About 40% of babies born to women with untreated syphilis can be stillborn or die as newborns, according to the CDC. Infants that survive can suffer from deformed bones, excruciating pain or brain damage, and some struggle to hear, see or breathe. Since this is entirely preventable, a baby born with syphilis is a shameful sign of a failing public health system.

In 2022, the most recent year for which the CDC has data available, more than 3,700 babies were infected with syphilis, including nearly 300 who were stillborn or died as infants. More than 50% of these cases occurred because, even though the pregnant parent was diagnosed with syphilis, they were never properly treated.

That year, there were 200,000 cases identified in the U.S., a 79% increase from five years before. Infection rates among pregnant people and babies increased by more than 250% in that time; South Dakota, where Strohfus works, had the highest rates — including a more than 400% increase among pregnant women. Statewide, the rate of babies born with the disease, a condition known as congenital syphilis, jumped more than 40-fold in just five years.

And that was before the current shortage of shots.

In Mississippi, the state with the second highest rate of syphilis in pregnant women, Dr. Caroline Weinberg started having trouble this summer finding treatments for her clinic’s patients, most of whom are uninsured, live in poverty or lack transportation. She began spending hours each month scouring medicine suppliers’ websites for available doses of the shots, a form of penicillin sold under the brand name Bicillin L-A.

“The way people do it for Taylor Swift, that’s how I’ve been with the Bicillin shortage,” Weinberg said. “Desperately checking the websites to see what I can snag.”

The shortage is driving up infection rates even further.

The way people do it for Taylor Swift, that’s how I’ve been with the Bicillin shortage. Desperately checking the websites to see what I can snag.

—Dr. Caroline Weinberg

In a November survey by the National Coalition of STD Directors, 68% of health departments that responded said the drug shortage will cause syphilis rates in their area to increase, further crushing the nation’s most disadvantaged populations.

“This is the most basic medicine,” said Meghan O’Connell, chief public health officer for the Great Plains Tribal Leaders’ Health Board, which represents 18 tribal communities in South Dakota and three other states. “We allow ourselves to continue to not have enough, and it impacts so many people.”

ProPublica examined what the federal government has done to manage the crisis and the ways in which experts say it has fallen short.

The government could pressure Pfizer to be more transparent.

Twenty years ago, there were at least three manufacturers of the syphilis shot. Then Pfizer, one of the manufacturers, purchased the other two companies and became the lone U.S. supplier.

Pfizer’s supply has fallen short since then. In 2016, the company announced a shortage due to a manufacturing issue; it lasted two years. Even during times when Pfizer had not notified the FDA of an official shortage, clinics across the country told ProPublica, the shots were often hard to get.

Several health officials said they would like to see the government use its power as the largest purchaser of the drug to put pressure on Pfizer to produce adequate supplies and to be more transparent about how much of the drug they have on hand, when it will be widely available and how stable the supply will be going forward.

In response to questions, Pfizer said there are two reasons its supply is falling short. One, the company said, was a surge in use of the pediatric form of the drug after a shortage of a different antibiotic last winter. Pfizer also blamed a 70% increase in demand for the adult shots since last February, which it described as unexpected.

Public health experts say the increase in cases and subsequent rise in demand was easy to see coming. Officials have been raising the alarm about skyrocketing syphilis cases for years. “If Pfizer was truly caught completely off guard, it raises significant questions about the competency of the company to forecast obvious infectious disease trends,” a coalition of organizations wrote to the White House Drug Shortage Task Force in September.

Pfizer said it is consistently communicating with the CDC and FDA about its supply and that it has been transparent with public health groups and policymakers.

The FDA has a group dedicated to addressing drug shortages. But Valerie Jensen, associate director of that staff, said the FDA can’t force manufacturers to make more of a drug. “It is up to manufacturers to decide how to respond to that increased demand.” she said. “What we’re here to do is help with those plans.”

Pfizer said it had a target of increasing production by about 20% in 2023 but faced delays toward the end of the year. The company did not explain the reason for those delays.

The company said it has invested $38 million in the last five years in the Michigan facility where it makes the shots and that it is increasing production capacity. It also said it is adding evening shifts at the facility and actively recruiting and training new workers. Pfizer said it also reduced manufacturing time from 110 to 50 days. By the end of June, the company expects the supply to recover, which it described as having eight weeks of inventory based on its forecast demands with no disruptions in sight.

A medical assistant at a California clinic in 2021 holds a syringe used to treat syphilis. Since last June, a shortage has made these shots hard to find. (Talia Herman, special to ProPublica) The government could manufacture the drug itself.

Having only one supplier for a drug, especially one of public health importance, makes the country vulnerable to shortages. With just one manufacturer, any disruption — contamination at a plant, a shortage of raw materials, a severe weather event or a flawed prediction of demand — can put lives at risk. What’s ultimately needed, public health experts say, is another manufacturer.

Congressional Democrats recently introduced a bill that would authorize the U.S. Department of Health and Human Services to manufacture generic drugs in exactly this scenario, when there are few manufacturers and regular shortages. Called the Affordable Drug Manufacturing Act, it would also establish an office of drug manufacturing.

This same bill was introduced in 2018, but it didn’t have bipartisan support and was never taken up for a vote. Sen. Elizabeth Warren, the Massachusetts Democrat who introduced the bill in the Senate, said she’s hopeful this time will be different. Lawmakers from both parties understand the risks created by drug shortages, and COVID-19 helped everyone understand the role the government can play to boost manufacturing.

Still, it’s unlikely to be passed with the current gridlock in Congress.

The government could reserve syphilis drugs for infected patients.

Responding to the shortage of shots to treat the disease, the CDC in July asked health care providers nationwide to preserve the scarce remaining doses for people who are pregnant. The shots are considered the gold standard treatment for anyone with syphilis, faster and with fewer side effects than an alternative pill regimen. And for people who are pregnant, the pills are not an option; the shots are the only safe treatment.

Despite that call, the military is giving shots to new recruits who don’t have syphilis, to prevent outbreaks of severe bacterial respiratory infections. The Army has long administered this treatment at boot camps held at Fort Leonard Wood, Fort Moore and Fort Sill. The Army has been unable to obtain the shots several times in the past few years, according to the U.S. Army Center for Initial Military Training. But the Defense Health Agency’s pharmacy operations center has been working with Pfizer to ensure military sites can get them, a spokesperson for the Defense Health Agency said.

“Until we think about public health the way we think about our military, we’re not going to see a difference,” said Dr. John Vanchiere, chief of pediatric infectious diseases at Louisiana State University Health Shreveport.

Some public health officials, including Alaska’s chief medical officer, Dr. Anne Zink, questioned whether the military should be using scarce shots for prevention.

“We should ask if that’s the best use,” she said.

Using antibiotics to prevent streptococcal outbreaks is a well-established, evidence-based public health practice that’s also used by other branches of the armed services, said Lt. Col. Randy Ready, a public affairs officer with the Army’s Initial Military Training center. “The Army continues to work with the CDC and the entire medical community in regards to public health while also taking into account the unique missions and training environments our Soldiers face,” including basic training, Ready said in a written statement.

The government isn’t stockpiling syphilis drugs.

In rare instances, the federal government has created stockpiles of drugs considered key to public health. In 2018, confronting shortages of various drugs to treat tuberculosis, the CDC created a small stockpile of them. And the federal Administration for Strategic Preparedness and Response keeps a national stockpile of supplies necessary for public health emergencies, including vaccines, medical supplies and antidotes needed in case of a chemical warfare attack.

In November, the Biden administration announced it was creating a new syphilis task force. When asked why the federal government doesn’t stockpile syphilis treatments, Adm. Rachel Levine, the HHS official who leads the task force, said officials don’t routinely stockpile drugs, because they have expiration dates.

In a written statement, an HHS spokesperson said that Bicillin has a shelf life of two years and that the Strategic National Stockpile “does not deploy products that are commercially available.” In general, the spokesperson wrote, stockpiles are most effective before a national shortage begins and can’t overcome the problems of limited suppliers or fragile supply chains. “There is also a risk that stockpiles can exacerbate shortages, particularly when supply is already low, by removing drugs from circulation that would have otherwise been available,” the spokesperson wrote.

Stephanie Pang, a senior director with the coalition of STD directors, said that given the critical role of this drug and the severe access concerns, she thinks a stockpile is necessary. “I don’t have another solution that actually gets drugs to patients,” Pang said.

The government could declare a federal emergency.

Some public health officials say the federal government needs to treat the syphilis crisis the way it did Ebola or monkeypox.

Declare a federal emergency, said Dr. Michael Dube, an infectious disease specialist for more than 30 years. That would free up money for more public health staff and fund more creative approaches that could lead to a long-term solution to the near-constant shortages, he said. “I’d hate to have to wait for some horrible anecdotes to get out there in order to get the public’s and the policymakers’ minds on it,” said Dube, who oversees medical care for AIDS Healthcare Foundation wellness clinics across the country.

Citing an alarming surge in syphilis cases, the Great Plains Tribes wrote to the HHS secretary last week asking that the agency declare a public health emergency in their areas. In the request, they asked HHS to work globally to find adequate syphilis treatment and send the needed medicine to the Great Plains region.

During the 2014 outbreak of Ebola in West Africa, Congress gave hundreds of millions of dollars to HHS to help develop new rapid tests and vaccines. Facing a global outbreak of monkeypox in 2022, a White House task force deployed more than a million vaccines, regularly briefed the public and sent extra resources to Pride parades and other places where people at risk were gathered.

I’d hate to have to wait for some horrible anecdotes to get out there in order to get the public’s and the policymakers’ minds on it.

—Dr. Michael Dube

Levine, leader of the federal syphilis task force, countered that declaring an emergency wouldn’t make much of a difference. The government, she said, already has a “dramatic and coordinated response” involving several agencies.

The FDA recently approved an emergency import of a similar syphilis treatment made by a French manufacturer that had plenty on hand. According to the company, Provepharm, the imported shots are enough to cover approximately one or two months of typical use by all people in the U.S. (The FDA would not say how many doses Provepharm sent, and the company said it was not allowed to reveal that number under the federal rules governing such emergency imports.)

Clinics applaud that development. But many of them can’t afford the imported shots.

The government could do more to rein in the cost.

Clinics and hospitals that primarily serve low-income patients often qualify for a federal program that allows them to purchase drugs at steeply discounted prices. Pharmaceutical companies that want Medicaid to cover their outpatient drugs must participate in the program.

One factor in determining the discount price is whether a pharmaceutical company has raised the price of a drug by more than the rate of inflation. Because Pfizer has hiked the price of its Bicillin shots significantly over the years, the government requires that it be sold to qualifying clinics for just pennies a dose. Otherwise, a single Pfizer shot can retail for upwards of $500. The French shots are comparable in retail price and not eligible for the discount program.

Several clinic directors also said they worried that drug distributors were reserving the limited supply of the Pfizer shot for organizations that could pay full price. For several days in January, for example, the website of Henry Schein, a medical supplier, showed doses of the shot available at full price, while doses at the penny pricing were out of stock, according to screenshots shared with ProPublica. When asked whether it was only selling shots at full price, a spokesperson for Henry Schein did not respond to the question.

Local health departments that qualify for the discount program told ProPublica they’ve had to pay full price at other distributors, because it was the only stock available.

The Health Resources and Services Administration, the federal agency that regulates the discount program, said that a drug manufacturer is ultimately responsible for ensuring that when supplies are available, they are available at the discounted price. When asked about this, Pfizer said that it has “one inventory that is distributed to our trade partners” and that hospitals and clinics that qualify for the discount program are “responsible for ensuring compliance with the program and orders through the wholesaler accordingly.” The company added, “Pfizer plays no part in this process.”

In October, on Weinberg’s regular search for shots for her Mississippi clinic, she found doses of Bicillin for sale at the discounted price and purchased 40. “The idea that we’re supposed to be hoarding treatment is a horrific compact,” she said. Word got out that the clinic, called Plan A, has some shots, and other clinics began sending pregnant patients there.

The clinic’s supply is dwindling. Weinberg is happy to get the shots to patients who need them. But she’s not sure how much longer her reserve will last — or if she’ll be able to find more when they’re gone.

by Isabelle Taft, Mississippi Today

This article was produced for ProPublica’s Local Reporting Network in partnership with Mississippi Today. Sign up for Dispatches to get stories like this one as soon as they are published.

Key Mississippi lawmakers have introduced several bills that would drastically limit when people can be jailed without criminal charges as they await court-ordered psychiatric treatment.

The proposals follow an investigation by Mississippi Today and ProPublica finding that hundreds of people in the state are jailed without charges every year as they go through the civil commitment process, in which a judge can force people to undergo treatment if they’re deemed dangerous to themselves or others. People who were jailed said they were treated like criminal defendants and received no mental health care. Since 2006, at least 17 people have died after being jailed during the commitment process, raising questions about whether jails can protect people in the midst of a mental health crisis.

Civil rights lawyers contend Mississippi’s practice is unconstitutional because it amounts to punishing people for mental illness, but the state’s civil commitment law allows it. That law spells out the process by which people suffering from severe mental illness can be detained, evaluated and ordered into treatment. Under the law, those people can be held in jail until they’re admitted to a state psychiatric hospital or another mental health facility if there is “no reasonable alternative.” If there isn’t room at a publicly funded facility or open beds are too far away, local officials often conclude that they have no other option besides jail.

“Putting a person in jail because they’re hearing voices and you don’t know what to do with them — that’s not right,” said state Rep. Kevin Felsher, R-Biloxi, one of the lawmakers behind legislation to curtail the practice. The news stories, he said, showed that people are jailed for longer than he thought and that Mississippi is unique in doing so.

The proposals represent the biggest effort to change the state’s civil commitment process since at least 2010, according to a review of legislation and interviews with mental health advocates. That year, lawmakers standardized the commitment process across the state and gave county officials the option to call on crisis teams first. A measure that would have prohibited jail detentions altogether ultimately failed.

A bill proposed by Felsher would allow jail detentions during the commitment process only for “protective custody purposes and only while awaiting transportation” to a medical facility. It would restrict such detentions to 72 hours.

A bill authored by state Rep. Sam Creekmore, R-New Albany, chair of the House Public Health and Human Services Committee, would clamp down on the practice even more, allowing counties to jail people without criminal charges only if they are “actively violent” and for no longer than 24 hours.

The vast majority of the 2,000 jail detentions in 19 counties analyzed by Mississippi Today and ProPublica lasted longer than 24 hours. About 1,200 lasted longer than 72 hours. (Those figures include detentions between 2019 and 2022 for both mental illness and substance abuse; the legislation would address only the commitment process for mental illness.)

State Rep. Sam Creekmore, R-New Albany, has proposed a bill that would prohibit jail detentions for people going through the civil commitment process unless they are “actively violent” and would limit such detentions to 24 hours. The vast majority of detentions in 19 counties over four years lasted longer than that, according to an analysis by Mississippi Today and ProPublica. (Eric J. Shelton/Mississippi Today)

Creekmore’s bill, which passed out of committee without opposition Thursday, aims to reduce unnecessary commitments by generally requiring people to be screened for mental illness before paperwork can be filed to have them committed. Those screenings would be conducted in most cases by community mental health centers — independent organizations, partly funded by state grants, that are supposed to provide mental health care close to home. That bill also would require those organizations to treat people while they’re in jail.

A bill authored by Sen. Nicole Boyd, R-Oxford, to increase state oversight of community mental health centers contains language similar to Creekmore’s proposal restricting jail detentions. Her bill has been referred to the Judiciary A committee, which is chaired by one of its co-authors, Sen. Brice Wiggins, R-Pascagoula.

The bills would bring Mississippi more in line with other states that allow people going through the civil commitment process to be jailed in limited circumstances. South Dakota permits jail detentions without criminal charges but limits them to 24 hours. Wyoming permits them in an “extreme emergency” and only for 72 hours before a hearing.

The Mississippi Department of Mental Health says reforming the commitment process is a priority this legislative session. “We don’t want someone to have to wait in jail simply because they need mental health treatment,” said Wendy Bailey, director of the agency, at a January conference attended by county officials from all over the state.

I think you’ll find all 82 clerks, all 82 sheriffs, all 400 supervisors understand that the jail is not the place they need to be. But there has to be a place. If it’s not the jail, there has to be a place available.

—Bill Benson, Lee County chancery clerk

But the Mississippi Association of Supervisors, which represents county governments, has raised questions about whether the bills would force county officials to spend more money. Under state law, counties are responsible for housing residents going through the commitment process until they are admitted to a state hospital. Some local officials contend they don’t have any place other than jail to put people.

“I think you’ll find all 82 clerks, all 82 sheriffs, all 400 supervisors understand that the jail is not the place they need to be,” said Bill Benson, who as Lee County’s chancery clerk coordinates the commitment process there. “But there has to be a place. If it’s not the jail, there has to be a place available.”

Derrick Surrette, executive director of the Mississippi Association of Supervisors, said county leaders are “all for” keeping people out of jail while they wait for mental health care. But, he said, they’re concerned that they’ll be forced to pay for treatment in private facilities because there aren’t enough publicly funded beds. None of the proposals would expand publicly funded treatment beds, nor would they provide funding to counties. The association hasn’t taken a position on the bills to limit jail detentions.

“It’s a whole lot of legislation being proposed telling the county and a regional mental facility what to do,” Surrette said. “Is there very much in there telling what the state shall do?”

The Department of Mental Health advises local officials to direct people who need help to outpatient mental health care when appropriate and to rely on the civil commitment process only when needed. If the commitment process can’t be avoided, the department says officials should work with their local community mental health centers to seek alternatives to jail.

A padded cell in the Adams County jail in Natchez, Mississippi, is used to hold people awaiting psychiatric evaluation and court-ordered treatment. Lacey Robinette Handjis, a 37-year-old hospice care consultant and mother of two, was found dead in one of the jail’s two padded cells in late August, less than 24 hours after she was booked with no criminal charges to await mental health treatment. (Eric J. Shelton/Mississippi Today)

The state has expanded the number of beds in crisis stabilization units, which are designed to provide short-term treatment in a less restrictive setting than state hospitals. Chancery clerks and sheriff’s deputies complain that those facilities frequently refuse to accept people they deem to be violent or in need of additional medical care, though state data shows those refusals are declining.

An additional bill filed by Felsher would require counties to pay for care at a medical facility if a judge has ordered someone into treatment, no publicly funded bed is available and the person can’t pay for treatment. Although the Mississippi Association of Supervisors hasn’t taken a position on that bill, either, it opposed a similar provision last year because the measure didn’t provide any funding.

At a hearing in November 2022, Felsher asked Benson, the chancery clerk in Lee County, whether he would support his county paying hospitals to treat residents as an alternative to jail. Benson responded that if he did, “My supervisors would hang me.”

Benson said in an interview that it costs just $40 a day on average to jail someone in Lee County. By contrast, Neshoba County, which is among those that contract with private providers, pays between $625 and $675 a day to Alliance Health Center to treat county residents when no public bed is available.

Felsher said he hopes to expand the availability of public treatment facilities so counties aren’t on the hook except in rare circumstances. But he also said he believes the cost of alternatives can’t justify jailing people who haven’t been charged with crimes.

“We can’t send people with mental illness to jail because the county doesn’t want to pay for it,” he said. “If it is a fight, it’s a fight that I will have. We may not win it, but we’ll have it.”

Staffers with Disability Rights Mississippi say the bills don’t go far enough because they don’t ban jail detentions outright. At least a dozen states, including neighboring Alabama, Louisiana and Tennessee, have done so.

Without such a ban, Disability Rights Mississippi staff say they’re planning to sue the state and some counties, alleging the practice is unconstitutional. A federal lawsuit in Alabama led to a ruling in 1984 prohibiting the practice there.

“Mississippi Today’s reporting has revealed the horrifying scope of this problem, including those who have met an untimely death and data to back it up,” said Polly Tribble, the organization’s director. “I hope that, in light of these dire situations, the Legislature will be motivated to address these issues.”

Bailey, head of the state Department of Mental Health, said she was not aware of the possibility of litigation until Mississippi Today asked about it. She said her agency is working to find ways to make sure people get mental health treatment without going through the civil commitment process, and to restrict the use of jail when they do.

Agnel Philip of ProPublica contributed reporting and Mollie Simon of ProPublica contributed research.

by Melissa Sanchez

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

In the summer of 2021, I had just returned to work from maternity leave and was scouting around for my next story. By chance, I was connected with an immigrant rights advocate who told me about a fatal fire a few years earlier in a house for workers at a large dairy farm in southwestern Michigan. Two Mexican immigrant workers had died.

Until then, I hadn’t thought about the immigrants who work — and often live — on America’s dairy farms. I am the daughter of immigrants, and I grew up in Michigan. But much of what I knew about immigrant labor was about people who work in other industries: construction, factories, restaurants. Dairy work was unfamiliar terrain.

I began requesting records related to the fire, but soon other stories pulled me away. It took close to a year before I was able to return my focus to that fire and the broader issues affecting immigrant dairy workers. I requested logs of 911 calls tied to some of the largest farms in the Midwest. The records I received showed a dark slice of life: horrific accidents, unpaid wages, problems with overcrowded housing and extreme isolation. I also got records from the federal Occupational Safety and Health Administration and saw how limited that agency is in its ability to investigate deaths and injuries on smaller farms.

From the start, one case stood out: the death of a Nicaraguan boy named Jefferson Rodríguez, who lived on a dairy farm in Wisconsin with his father, a worker there. The sheriff’s report was devastating: The boy had been run over by a skid steer, a 6,700-pound piece of machinery used to scrape manure off barn floors. Just one deputy investigating what happened spoke any Spanish. When she interviewed José, the boy’s father, he was almost incoherent. Eventually, the deputy concluded that José had been operating the skid steer, and the boy’s death was ruled an accident. But José was publicly blamed. Local media covered what happened as the tragic story of an immigrant who accidentally killed his son. It appeared that reporters never spoke with José or any of the other workers on the farm that night.

The first time I visited Wisconsin, I looked for José. I drove past the farm where Jefferson had died to get a sense of the place, then pulled over in a spot where my phone got reception and searched for the nearest Mexican restaurant. Once there, I went straight to the kitchen and asked if anybody from Nicaragua worked there. I couldn’t imagine there would be many immigrants from that part of Central America in this tiny community a little north of Madison. As luck would have it, a man from northern Nicaragua came out and told me he had once worked with José on a different farm. Later, during his lunch break, we went to his apartment and I watched as he sent José a voice message on WhatsApp about me. José told him he could give me his phone number.

Until this moment, I assumed that law enforcement had gotten the story right. But in the weeks and months that followed, I learned about an entirely different version of events from José, his attorney and dozens of immigrants in the community: Another worker, on his first day on the job and with little training, had accidentally run over the boy. Deputies never spoke to that man, who like José was undocumented.

Around this time, my colleague Maryam Jameel joined me in the reporting. Like me, she is bilingual and the daughter of immigrants. As an engagement reporter, she has given a lot of thought to how we find and get our journalism to hard-to-reach communities. We knew that writing about Jefferson’s death and the broader issues affecting dairy workers would be difficult. Workers are isolated, often living in old houses or trailers on the farms. Workers routinely put in 12 to 18 hours a day and are exhausted. And they’re afraid of losing their jobs and their housing, or getting deported, if they speak out.

It took months to convince José, who was in the midst of a wrongful death lawsuit against the farm, to sit down for a lengthy interview. He finally did one morning in December 2022 in a cold mobile home on the farm where he now works. As José described his decision to make the dangerous trek across Central America and Mexico with his oldest son, Maryam and I wept. Once in Wisconsin, José and his son moved into a room above a milking parlor, the barn where cows are milked day and night. (In a deposition, the farm owners said workers only stayed in the rooms above the parlor between shifts or when the weather was bad. More than a half-dozen former workers and visitors to the farm told us that Jefferson, his father and other workers lived there.)

José told us he knew people in his community thought he was an irresponsible father. And he was bewildered by law enforcement; he wondered if deputies didn’t ask him direct questions about the accident because they felt sorry for him. That day, he seemed relieved to talk, as if he’d been waiting for somebody to ask him what had happened that night on the farm.

We spent months searching for others who worked on the farm, including the worker who accidentally killed Jefferson. He’d left the state and was trying to start over. He was scared to talk, but Maryam — in her gentle but persistent way — was able to convince him to do so. We also interviewed the deputy who questioned José the night his son died. We discovered she’d made a grammatical error in Spanish that led her to misunderstand what had happened.

Maryam and I tried to write this story with nuance and empathy. It was important to us to show every person’s humanity and agency, particularly the immigrants we interviewed who rarely saw themselves as victims but live and work in conditions that few Americans can imagine for themselves.

After we published the story about Jefferson’s death, we continued our reporting, interviewing more than 130 current and former dairy workers. We wrote about the consequences for Wisconsin’s dairy industry and workers of a state law that bans undocumented immigrants from driving. We examined OSHA’s haphazard track record of investigating deaths on small farms in Wisconsin and across the country. And we wrote about how workers are routinely injured on dairy farms — then discarded, fired and evicted. Many were unable to get help to treat their injuries, as small farms are excluded from the state’s workers’ compensation requirements.

And on Tuesday, we published a story about the unregulated, often substandard housing that many dairy farms provide for their immigrant workers. Because dairy jobs are year-round — unlike seasonal agricultural work such as picking cherries or tomatoes — many federal and state laws covering migrant farmworker rights, including housing standards, don’t apply. As a result, employer-provided housing on dairy farms typically doesn’t get inspected.

Which brings me back to the fatal house fire in southwestern Michigan that left two immigrant workers dead in the early hours of April 25, 2018.

This month, I dug out the inch-thick, green file folder where I’d stashed the records I had begun collecting back in the summer of 2021. The workers’ employer, Riedstra Dairy, provided lodging to the two men who died and a half-dozen others in a house a few miles from the farm in the town of Mendon, according to records.

Because dairy workers don’t meet the state’s definition of migrant workers, the house wasn’t required to undergo an inspection by the state’s migrant labor housing program. And so it hadn’t been inspected, according to a spokesperson for the Michigan Department of Agriculture and Rural Development.

The house for workers at Riedstra Dairy after the April 2018 fire (St. Joseph’s Sheriff's Office)

The local Fire Department investigated the blaze, as did the Michigan State Police. Neither could determine what caused it.

In a phone interview, the farm’s owner told me that the house was routinely inspected by a third party who, just a few weeks before the fire, had ensured there were working smoke detectors, carbon monoxide detectors and fire extinguishers. “We want our people to be safe,” he said.

Reading through the files again, I remembered what it felt like to be back at the beginning of a new project, learning about the lives and deaths of the people who, as one sociologist put it, are “milking in the shadows” of America’s Dairyland.

The men died from smoke inhalation; they were likely sleeping at the time of fire. The others were either working a 12-hour shift or buying groceries in a nearby town. One later told police that as they returned from the store, they found themselves “following a fire truck and then they realized it was their home that was burning,” according to one report.

After the fire, the local American Red Cross provided the remaining workers with emergency lodging and funds to cover urgent needs. The Mexican Consulate in Detroit helped arrange for the bodies to be sent home.

A consular official who interviewed the survivors in the days after the fire encouraged me to keep looking into the broader issues affecting immigrant dairy workers. “They’re just the most vulnerable people,” he said. “And it’s really difficult to get them to talk about any work-related incidents happening, perhaps because of fear of retaliation. They don’t want to lose their jobs.”

Maryam and I are still finishing up a few pieces for our “America’s Dairyland” series. We are also putting together a guide in Spanish for dairy workers in Wisconsin who get injured on the job, and we’re following up on some tips about assaults and racism on dairy farms.

After that, we want to look more broadly at other stories to pursue this year at the intersection of labor and immigration. If you have an idea, we’d love to hear it.

Help ProPublica reporters investigate the immigration system. Fill out our questionnaire here.

by Kirsten Berg, Max Blau, Duaa Eldeib, Jeff Ernsthausen, Maya Miller, Lizzie Presser and Annie Waldman

About one in five people in the United States have a mental illness. Yet for many, accessing care can be extremely difficult. Our team of investigative reporters plans to spend the next several months digging into the reasons behind these persistent issues.

To identify and report important stories, we need to hear from people throughout the mental health care system. Those we’ve spoken to so far have shared details about common problems. Many seeking care can’t find a provider or program with availability, with some waiting months — or even years — to get the care they need. Meanwhile, insurance companies have refused to pay for necessary care while those in crisis often land in overcrowded emergency rooms. On top of that, systemic pressures can cause providers to misdiagnose patients, especially women and people of color.

Now, we want to go deeper, by gathering the perspectives of the people who know the country’s mental health system best.

Mental health care providers have already begun sharing the challenges they face in trying to get patients the treatment they need, from barriers to joining or staying in an insurance network to navigating low reimbursement rates. We would like to connect with as many of you as possible in order to identify themes and patterns in this space.

We also hope to hear from others who know intimately how the mental health care system operates, like those who work in behavioral health wings at insurance companies or independent medical review organizations. Please fill out the form below if you have worked, or currently work, as a medical director, actuary or network manager or have any other insider insight to share.

And if you have tried to navigate this system, either by yourself or on behalf of a friend or family member, we hope to learn from you too. Your insights help us understand the consequences of the structure and delivery of mental health care today.

Our team may not be able to respond to everyone personally, but we will read everything you submit. We appreciate you sharing your story, and we take your privacy seriously. We are gathering these stories for the purposes of our reporting and will contact you if we wish to publish any part of your story.

We are the only ones reading what you submit. If you would prefer to use an encrypted app, see our advice at propublica.org/tips. You can also email our reporting team. You can fill out the form below or at https://propub.li/mentalhealth/.

by Marilyn W. Thompson

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Republican Paul Graves’ work was about to come undone. In the wee hours of Nov. 15, 2021, he and his fellow Republican on Washington state’s independent redistricting commission had finally prevailed on their Democratic counterparts to agree to the maps voters would use in the upcoming election.

But then Latino voters sued the state, claiming the new legislative maps didn’t give them voting power commensurate with their population. Now, Graves worried, a federal judge was about to force the state to give Democratic-leaning Latinos more voting power.

With the balance of power in Washington up for grabs, he launched a covert attack. He consulted powerful state Republicans. He reached out to national Republicans, including the most influential conservative redistricting lawyer in the country, to discuss funding a lawsuit and get strategic advice. He conferred with a Seattle law firm. And he found a Latino congressional hopeful to act as the face of the lawsuit.

A countersuit was filed — against Graves’ own work. This suit made the opposite argument from the Latino group’s. Yes, the map that Graves and his fellow commissioners had created discriminated. But it had disadvantaged white people and other voters.

Sure enough, as Graves had foreseen, in August of last year the judge sided with the Latino plaintiffs. He determined the Yakima Valley map violated the Voting Rights Act, the landmark 1965 civil rights law that has been the bedrock of voting discrimination cases for over half a century. Section 2 of the VRA prohibits the creation of election districts that deprive voters of color of their full rights. The judge said the maps needed to be redrawn.

Having handed Latinos a win, the judge tossed the lawsuit that Graves had helped generate as moot. Undeterred, the legal team of Benancio Garcia, the Latino congressional hopeful, appealed all the way to the U.S. Supreme Court, asking it to block the new maps until it had weighed the merits of his claim. The court declined to take the case earlier this month, and it is unclear whether lawyers will now appeal to the 9th U.S. Circuit Court of Appeals.

Graves told ProPublica he wanted legal action that would slow down the court because he believed the plaintiffs were about to push through “a naked partisan gerrymander.”

“My singular goal, once a lawsuit was filed, was to defend the maps,” he said in a statement. His work is described in sworn depositions and court documents, including emails and other communications introduced as exhibits.

The Washington state salvo is merely one part of a yearslong national legal assault on laws and policies intended to prevent discrimination. In 2013, in a victory for right-wing activists, the conservative-majority Supreme Court overturned a key aspect of the VRA, lifting federal oversight over maps in areas that had historically discriminated against people of color. Last year, plaintiffs succeeded in getting the high court to make affirmative action illegal at private universities. Conservatives have also targeted school desegregation efforts and diversity initiatives at myriad organizations, including corporations and universities.

The activists are not done. By taking aim at the remaining pillar of the VRA, Section 2, they could substantially reshape U.S. elections. Despite a recent setback at the Supreme Court in an Alabama case, a sprawling, multipronged effort to get the high court to change course continues, supported by key national Republican figures. The Washington state case is one of 38 in 12 states that seek to roll back protections against discrimination by either attacking Section 2 directly or arguing that the constitutional protections of the 14th Amendment, which was passed after the Civil War and extended full citizenship rights to all Americans, trump Section 2.

The underlying premise animating these legal efforts is, in the famous words of Chief Justice John Roberts in another major ruling, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The argument, which conservatives have been developing for years, flips what has been traditionally seen as the original intent of the equal protection clause of the 14th Amendment. Instead, they argue, the amendment can be read as prohibiting taking racial and ethnic composition into account — period. Section 2, however, requires states to ensure that voters of color are fairly represented.

Republicans say that these competing mandates confuse state legislators as they try to draw fair maps. Democrats are taking advantage of Section 2 to draw as many districts as possible that will elect Democrats, according to Adam Kincaid, who directs the National Republican Redistricting Trust and its nonprofit affiliate the Fair Lines America Foundation. “That was not what Congress intended and is not what the Constitution permits,” he said.

Victory over Section 2 could stifle the voting power of nonwhite groups nationwide, striking fear in legal experts and activists who say that the country remains scarred by centuries of discrimination and racism.

“Even after serious damage by the Supreme Court, the Voting Rights Act remains one of the country’s most effective civil rights statutes. Every attempt to limit its impact is really an attempt to limit our ability to protect against racial discrimination,” said Justin Levitt, a former Justice Department civil rights official who is now a constitutional law professor at Loyola Law School.

An Urgent Mission

Tracking the course of mapmaking fights is vital to understanding the likely results of the 2024 elections. In Washington state, where partisan gerrymandering is forbidden, Graves and his fellow Republican commissioner came to believe the Democratic members were pushing a map that was overly favorable for their party.

Paul Graves, a Republican member of Washington’s state redistricting committee (Washington state House Republicans website)

At issue was how to divide Yakima Valley, a rural area that’s home to many of the state’s vineyards and historically has voted Republican. In recent years, the Latino population in the valley has boomed.

By the Democrats’ read of Section 2, the commission was required to create a district that gave Latinos in Yakima a fair chance to elect the candidate of their choice. The commission couldn’t reach a consensus on whether it should hire a consultant to do a racial voting analysis, so Democrats hired their own. He concluded the district needed a 60% Latino voting population to comply with the VRA.

Most Latino voters lean Democratic, so drawing such a map could diminish Republican political power.

Concerned, Graves and another Republican member convinced Republicans in the state Senate to pay for an opinion from a Seattle law firm it used for legal work. It concluded that drawing lines to comply with Section 2 racial mandates could give grounds for a 14th Amendment lawsuit.

“I don’t read Section 2 of the Voting Rights Act to say one party gets to win over another,” Graves later testified.

Partisan arguments dragged on during an all-night meeting the commission held on Nov. 15. Graves at one point asked Democrats what would be a “fair trade” if they got a majority Hispanic district in the Yakima Valley. If Republicans gave up voting strength there, he argued, the GOP should get an adjustment elsewhere.

With all of the haggling, the commission blew its midnight deadline but continued working through the night to reach an agreement that it could forward to the state Supreme Court. Worn down, Democrats finally agreed to the Republican proposals for the new 15th Legislative District.

Graves was in charge of plugging final numbers into computer mapping software. Democrats later complained that his final map put the Latino voter percentage a tad lower than they had expected, at just over 50%. Graves said Democrats were consulted on every mapping adjustment.

The Washington Supreme Court allowed the commission’s work to stand despite its tardiness, and the maps were used in the 2022 elections.

Latino plaintiffs filed the Section 2 lawsuit in January 2022. The commission was not a named defendant, but the panel’s work was at the heart of the case. All the commissioners were expected to be state witnesses.

Graves and some other commissioners were upset when the office of the Democratic attorney general declined to defend the map and told the commission to hire its own attorney. Commission Chair Sarah Augustine resigned in March 2022, criticizing the state’s lack of legal support.

Graves believed that the state’s refusal to defend the map could lead the judge to render a judgment that would invalidate the map, which would have been “a disaster,” he testified.

“I was faced with the prospect of having to raise private funds to defend a public map,” he testified. Graves, a former lawmaker who ran the legal department of a trucking firm, urgently worked the phone. He got in touch with his state and national Republican contacts, including Kincaid, the director of the NRRT and its foundation, who Graves had reached out to soon after his appointment. Graves said he wasn’t sure at first what the appropriate legal strategy should be, but he knew he had to move expeditiously.

Through a GOP contact, Graves connected with Garcia, an Iraq combat veteran and prominent Latino Republican who wanted to run for Congress. Garcia testified that they talked by phone about the map and whether it could be a “racial gerrymander” drawn to favor Latino Democrats. They discussed whether Garcia would quickly file a lawsuit challenging the map, and Graves connected him with two Seattle lawyers and Kincaid. Graves also urged him to bring on a national Latino GOP group as a co-plaintiff. (The group never signed on.)

Graves emailed Garcia that Kincaid’s foundation “can serve as a funding vehicle for this work.” Kincaid declined to comment on foundation spending.

As a commissioner, state ethics rules restricted what Graves could share with outside parties about private commission deliberations. Plaintiffs’ lawyers introduced texts and emails that showed Graves guiding Garcia and questioned how Graves “found it appropriate — as a lawyer — to coordinate the filing of a lawsuit he believed to be meritless in order to interfere with a separate ongoing federal proceeding.”

Texts between Graves and Benancio Garcia, introduced into evidence by plaintiffs for a group of Latino voters suing over Washington’s electoral maps, appear to show Graves coaching Garcia through the process of filing a lawsuit. (U.S. District Court, Western District of Washington)

Graves called the accusations made by plaintiffs’ lawyers false and “scurrilous.”

In a statement, he told ProPublica his “singular goal, once a lawsuit was filed, was to defend the maps.”

For his part, Graves said he never believed his map was an illegal racial gerrymander, as Garcia’s lawsuit asserts. But Graves testified that he thought a 14th Amendment challenge “would at least meet the immediate goal” of delaying a default judgment.

Garcia’s testimony was also damaging. He said in his deposition that he knew little about the case brought by Latino voters until he talked with Graves and that he rarely spoke with his own lawyers. Asked who was paying his legal fees, he could only say, “I don’t know.” The legal team Graves helped arrange included state Rep. Andrew Stokesbary, the new House minority leader and a friend of Graves, and the national law firm of Jason Torchinsky, the NRRT’s chief counsel and a leading GOP redistricting litigator.

Garcia’s deposition harmed the suit so much that his lawyers later tried to have much of it corrected to reverse many of his assertions, including his testimony that his lawyers rarely talked with him. The judge would not allow the corrections.

Stokesbary, Torchinsky and Garcia did not respond to multiple requests for comment.

While the Garcia case was in motion, Stokesbary and Torchinsky agreed to represent three GOP intervenors in a parallel effort to derail the plaintiffs in the original case. This new effort sought to preserve the commission’s map. The intervenors, including a GOP lawmaker and the brother of an aide to a GOP redistricting commissioner, argued that Graves’ map did not violate Section 2 and no remedial map was needed.

The attorney general’s office asked the judge to investigate possible conflicts by Stokesbary and Torchinsky, who were representing clients arguing two opposite legal positions. As a leading Republican in the House, Stokesbary had voted to approve the plan Garcia was challenging. Plaintiffs’ lawyers argued that the conflicts traced back to Graves and his effort to “conjure up nonmeritorious and competing legal claims.” The judge allowed the attorneys to continue after their clients signed waivers.

After a four-day trial, the judge ruled in August 2023 that the Yakima Valley map must be redrawn before the 2024 election. Then a three-judge panel said the decision in the case brought by Latino voters rendered the Garcia case moot.

Graves took the stand during the trial and offered a convoluted defense. He described his fear that the commission’s map would be thrown out and his frantic effort to stop it. “I was trying to make sure the maps have a full-throated legal defense,” he testified.

He argued that the commission did not intentionally violate Section 2. The federal law, he said in a deposition, is “not crystal clear.”

Go Fishing

As the battle against Section 2 has continued, Torchinsky has emerged as one of the most significant GOP lawyers in fights over election mapmaking.

A fierce litigator, Torchinsky and his firm, Holtzman Vogel, have represented Republican congressional and Senate fundraising committees, the Republican National Committee and a long list of leading GOP candidates and PACs. In Texas, his efforts to shield Kincaid from demands that he give a deposition and produce documents in a Section 2 lawsuit brought by Latino plaintiffs dragged on for more than a year. An appeals court is still weighing GOP claims of legislative privilege in the case.

In Florida, Torchinsky worked for more than 100 hours with the staff of Gov. Ron DeSantis in 2022 to create an alternate congressional redistricting map that would be more favorable to Republicans. A circuit court judge ordered the map redrawn, saying it diminished Black voting strength, but an appeals court overturned the decision. The Florida Supreme Court has said it will hear the case.

That same year, Torchinsky weighed in on a Section 2 case before the 8th U.S. Circuit Court of Appeals that many legal experts expect to become the next Supreme Court showdown. The case involves a challenge from the Arkansas NAACP to the state’s 2021 redistricting plan. In a major ruling questioning decades of precedent, a three-judge panel said private parties lack standing to bring Section 2 lawsuits because the law gives enforcement power only to the U.S. attorney general.

Torchinsky had filed a brief on behalf of GOP Sen. Tom Cotton arguing that the courts should not allow private parties to bring lawsuits. The law is specific, he said, and to “infer otherwise would be an act of judicial lawmaking incompatible with the power of the federal judiciary.”

The appeals court recently declined to rehear the case, and the Arkansas NAACP and other plaintiffs are weighing an appeal to the Supreme Court.

Torchinsky’s clients had a setback in June 2023 when the Supreme Court issued an unexpected 5-4 decision upholding Section 2. The case involved a challenge to congressional maps brought by Black voters in Alabama. Representing the GOP congressional delegation in a solidly Republican state, Torchinsky urged justices to reverse the lower court’s order that the map be redrawn. “The Voting Rights Act was never intended to guarantee the success of one political party given the coincidence that the minority group prefers that political party,” he wrote.

Torchinsky explained his reasoning a few weeks later in a podcast interview. He reflected a view shared by the NRRT’s Kincaid, who told ProPublica in a statement that lawyers for the left, funded by vast sums of “dark money,” are turning the VRA “into a vehicle to elect more Democrats rather than to elect minority candidates.”

Torchinsky described the difficulties in many states of separating race and politics. As he put it, “When an African-American can’t win a statewide election in Alabama, is it because they are Black? Or because they are running as a Democrat? And I think that is some of what the courts should be trying to untangle in these cases.”

Torchinsky predicted “substantially more litigation” as state legislatures wrestle with tensions between Section 2 and the 14th Amendment.

Levitt, the former Justice Department official, said several justices have clearly expressed opposition to Section 2, so Republican lawyers in recent years appeal any case that might raise a new issue and have a chance to win over the court’s conservative supermajority.

“You put enough bait in the ocean, and sometimes you catch a fish,” he said.

Looking to 2024

The remedial map-drawing process is close to completion in Washington, with a judge’s decision expected this month. A court-appointed special master is considering five possible fixes. Republican leaders have condemned all the plans as Democratic gerrymanders that could disrupt four to eight GOP districts and change the election districts of hundreds of thousands of residents.

In recent months, GOP state Sen. Nikki Torres has joined the lawsuit brought by Latino voters as a third party with a personal stake in the outcome, arguing that the maps do not need to be redrawn to give Latinos a greater voice. She won election as the first Latina senator from Central Washington in 2022 with about 68% of the vote under the 15th District map drawn by the commission.

Plaintiffs’ lawyers consider her entry into the case just another delaying tactic that, if successful, will leave challenged maps in place for the 2024 election cycle.

Ernest Herrera, of the Mexican American Legal Defense and Education Fund, said: Lawyers for the intervenors are “trying every way they can to delay the Latino plaintiffs from having a map in which they can elect or have the opportunity to elect candidates of their choice.”

Alex Mierjeski contributed research.

by Melissa Sanchez and Maryam Jameel

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Minnesota Attorney General Keith Ellison’s lawsuit last month against a large dairy farm over alleged labor abuses, including millions of dollars in unpaid wages, was unusual in more than one way. It was his office’s first wage theft lawsuit against a dairy farm. And it put a spotlight on another issue that’s widespread but rarely addressed: substandard housing for immigrant dairy workers.

According to the attorney general’s complaint, workers at Evergreen Acres Dairy lived in “squalid” conditions, including in converted barns and a garage, that did “not meet Minnesota’s standards for habitability.” Several living spaces lacked heat. There was no toilet in one barn where workers lived. Photos included in the complaint show bathroom and bedroom walls covered in mold, disconnected sink pipes and cockroach infestations.

While the lawsuit targeted a single farm operation outside the Twin Cities, the reality is that substandard housing is widespread on dairy farms across the country. That’s because state and federal laws meant to ensure adequate housing for agricultural workers often exclude those on dairy farms. As a result, employer-provided housing for dairy workers rarely, if ever, gets inspected, certified or even tracked by any government agency.

Over the past year, ProPublica has reported on conditions for undocumented immigrants on dairy farms in Wisconsin, which is home to thousands of mostly small farms. We’ve seen and been told by workers about housing there that appears to be in even worse shape than what was depicted in the lawsuit. We’ve also talked to workers, attorneys, advocates and researchers in other states, including New York, Vermont and Michigan, who say workers there live in run-down, overcrowded, unsafe and unsanitary housing.

Last year, for example, we reported on the death of an 8-year-old Nicaraguan boy on a farm near Madison, Wisconsin, and noted that the boy lived with his father above a milking parlor, the barn where cows are milked day and night. (In a sworn deposition, the farm owners said workers only stayed in the rooms above the parlor between shifts or when the weather was bad. More than a half-dozen former workers and visitors to the farm told us the boy, his father and other workers lived there.)

Minnesota Attorney General Keith Ellison’s lawsuit outlined unfinished rooms, widespread mildew and lack of appliances in housing for workers of one large dairy farm. (Minnesota Attorney General’s Office)

Less than an hour away, we visited another farm where more than a half-dozen workers lived in a large, rundown house. Black mold covered the bathroom ceiling and walls. Thick electric cables lay exposed on the hallway between bedrooms. The kitchen ceiling was crumbling.

At other homes, we’ve seen makeshift walls, exposed insulation and kitchens that lack stoves and other appliances. Workers sometimes use space heaters because their homes don’t have functioning heating systems — a significant problem in Wisconsin’s winter.

One worker said he was assigned a closet that was barely large enough for a twin-size mattress. He said he slept there for months.

“They said I’d be there for 15 days, but four months passed,” said the worker, who spoke on the condition of anonymity because he still works on a farm and fears losing his job. “It got very cold in the winter because the apartment had a broken window.”

A house for dairy workers on a farm near Madison (Melissa Sanchez/ProPublica)

Federal laws meant to protect migrant and seasonal agricultural workers establish some basic housing standards, such as an adequate water supply, toilets and limits on how close sleeping quarters can be to livestock.

But those federal protections don’t generally apply to dairy workers because cows are milked year-round, unlike other agricultural jobs such as picking apples, which are temporary or seasonal.

States also can regulate housing for agricultural workers, though not all states conduct regular inspections.

Again, dairy worker housing is exempt from state scrutiny because the work is year-round.

Wisconsin’s migrant labor law only applies to agricultural workers whose permanent homes are elsewhere but work in the state for 10 months a year or less. As a result, dairy workers are excluded.

José Martínez, who chairs the Governor's Council on Migrant Labor in Wisconsin, said ProPublica’s reporting has “shed light on the need for regulation and oversight” for dairy work conditions, including housing. He said the council will discuss whether to recommend that Gov. Tony Evers support legislation to expand the state’s migrant labor law to cover dairy workers.

The issue has gotten some attention in recent years in other states. Bridge Michigan has reported on housing with faulty electrical wiring and “animal feces in an air vent, a dead rooster in the basement and a nest of rats gnawing at the insulation in the bathroom.” Vermont Public toured one worker’s home above a dairy barn, where a toilet sometimes leaked into the kitchen area and scalding water came out of the bare pipe he used to take showers. And in New York, the Times Union has reported on soft, wet, spongy floors, bedbugs and even skunks living under worker housing.

First image: A bedroom at an Addison County farm in Vermont. Second image: A shower used by farmworkers in Addison County. (Elodie Reed/Vermont Public)

In theory, workers could file complaints about their housing with local public health or building departments. In some cases, they could sue their employers under state landlord-tenant laws. But advocates say complaining or filing a lawsuit isn’t a realistic option for undocumented immigrant workers who fear getting fired, evicted and deported.

“The fear of losing their housing or losing their employment or both — it’s a real issue,” said Griselt Andrade, the lead attorney at the Agricultural Worker Project of the nonprofit Southern Minnesota Regional Legal Services. “Sometimes they just prefer to endure those conditions and to work.”

That’s what made Ellison’s lawsuit so unusual. Many of the workers at Evergreen Acres were undocumented immigrants from an indigenous community in the Mexican state of Oaxaca whose primary language is Zapotec, according to the lawsuit.

(A spokesperson for the Wisconsin attorney general’s office said lawyers there were unaware of any lawsuits related to substandard housing for farmworkers or similar cases in the state.)

Katherine Kelly, an attorney who manages the civil rights division in Ellison’s office, said the attorney general got involved after workers complained to a local Latino advocacy group about having their wages docked and, in some cases, not getting paid at all. During the investigation, many workers spoke to the office about housing conditions.

The lawsuit against Evergreen Acres and its owners relies on the state’s broad landlord-tenant protections to make the substandard housing allegations. Under Minnesota law, workers who are provided housing in exchange for their labor can be considered tenants; the laws aren’t so broad in many other states, making it hard to classify workers as tenants without evidence they paid rent. In the Evergreen Acres case, the lawsuit notes that the farm also deducted rent from workers’ wages, which makes the workers more like traditional tenants.

The farm “did not keep the premises in reasonable repair during the term of the lease,” according to the lawsuit.

Courtney Blanchard, an attorney for Evergreen Acres, declined to comment, citing the pending litigation. The farm and farm owners have not yet filed a response to the complaint.

Andrade said she is grateful that the lawsuit has shone a spotlight on substandard housing conditions for dairy workers.

“It’s widespread,” she said. “And it’s not just in certain areas. It’s throughout the state.”

by Kavitha Surana

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Sitting at her computer one day in late December, Dr. Sarah Osmundson mustered her best argument to approve an abortion for a suffering patient.

The woman was 14 weeks pregnant when she learned her fetus was developing without a skull. This increased the likelihood of a severe buildup of amniotic fluid, which could cause her uterus to rupture and possibly kill her. Osmundson, a maternal-fetal medicine specialist at Vanderbilt University Medical Center who helps patients navigate high-risk pregnancies, knew that outcome was uncommon, but she had seen it happen.

She drafted an email to her colleagues on the Nashville hospital’s abortion committee, arguing that the risk was significant enough to meet the slim exception to Tennessee’s strict abortion ban, which allows termination only when “necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function.” She pleaded with her fellow doctors to spare this woman the gamble when her baby wasn’t even viable.

Then came the replies.

One doctor wasn’t “brave enough.”

Another urged her to consider the optics — approving an abortion in this case could be seen as “cavalier” and trying to circumvent the law. “I’m saying this because I care about you and your personal liberties,” the doctor said.

To Osmundson, the responses reflected just how much abortion bans had warped doctors’ decision-making and forced them to violate the ethics of their profession, which require acting in the best interests of their patients.

Most medical exceptions in abortion bans only allow the procedure to “save the life of the mother.” But there is a wide spectrum of health risks patients can face during pregnancy, and even those that are potentially fatal could fall outside of the exceptions, depending on how the law is interpreted and enforced. Without clarification from legislators and prosecutors on how to handle the real-life nuances that have emerged in hospitals across America, doctors in abortion ban states say they are unable to provide care to high-risk pregnant patients that meets medical standards.

Under threat of prison time and professional ruin, they are finding their personal interests pitted against their patients’ and are overriding their expert training for factors that have nothing to do with medicine, like political perceptions and laws they aren’t qualified to interpret. As a result, some patients are forced to endure significant risks or must travel out of state if they want to end a pregnancy. Sometimes, their doctors aren’t even giving them adequate information about the dangers they face.

Osmundson and 30 other doctors across nine states in which abortion is banned or restricted described to ProPublica the impossible landscape they must navigate in the nearly two years since the Supreme Court struck down Roe v. Wade.

It is one in which fetuses — some with no chance of survival — are being prioritized over their at-risk mothers and oncologists are hesitating to give chemotherapy to cancer patients for fear of legal consequences if it disrupts the pregnancies.

Doctors described the position they’ve been put in — denying abortions to high-risk patients who are begging for them — as “distressing,” “untenable” and “insane.” Speaking out about the broken system felt like the only way to not be complicit, Osmundson said. “It’s going to take physicians coming together and saying: ‘We’re not going to participate in this. We’re going to do what we think is right for patients.’”

Osmundson, who has worked at Vanderbilt for the past eight years, decided to share with ProPublica the inner workings of the hospital’s abortion committee to give the public a rare glimpse into the tortured decisions she and her colleagues are being forced to make. It shows how maternal health care could be dramatically altered across America if Republicans gain control of Congress this fall and succeed in passing the nationwide ban that influential anti-abortion activists have long sought.

In a series of interviews, Osmundson detailed the deliberations in a wide variety of cases and described conversations and emails among doctors. She did not disclose the identities of patients or their individual files. ProPublica was able to confirm details with one patient and three colleagues familiar with the committee, some of whom were not willing to speak publicly for fear of professional repercussions. Vanderbilt declined to comment.

What she shared shows how the strictly written bans fail to account for a broad range of dangerous maternal health risks, leaving doctors to deny abortion requests for medical reasons like warning signs of preeclampsia, a potentially fatal blood pressure condition; complications related to Type 1 diabetes, which can cause vision loss, kidney disease and death; and conditions requiring patients to have their uteruses “cracked open” in order to give birth.

She’s come to believe it’s time to take abortion decisions out of doctors’ hands and shift the final say to hospital lawyers and administrators. In her view, that’s the only way to protect the independent judgment of the medical experts, who could make strong arguments in their patients’ interests using research and data.

“I understand pragmatism,” Osmundson told ProPublica. “I also don’t want to have a patient die and be responsible for it.”

She also thinks hospitals should require doctors to obtain informed consent from patients facing dangerous pregnancy complications, so that providers can’t make decisions on their behalf without counseling them about their risk and getting their response. “In this climate, we’ve really diminished women’s autonomy,” she said. “If a patient says, ‘I don’t want to take on that risk,’ we need to honor that.”

A few months ago, she was on call caring for a patient who had developed severe high blood pressure near 24 weeks, a warning sign for preeclampsia, which can rapidly deteriorate and lead to organ damage or death. With her pregnancy at the edge of viability, the patient requested to have a cesarean section, Osmundson said, even though there was a significant chance the baby might not survive.

Osmundson said she scheduled the surgery. This was not considered an abortion, because the intent was still to deliver a live baby. But after her shift ended, Osmundson recalled, a colleague overrode her and kept the patient pregnant.

Osmundson and her colleagues launched the committee in fall 2022 to address a crisis they were seeing unfold in abortion ban states across the country and at Vanderbilt: Patients facing severe and urgent pregnancy complications were being denied care by hospitals where doctors were terrified about the new legal personal and professional risks.

With strength in numbers, the committee members would back one another up and aim to serve the most patients possible while staying within the law.

Since then, the committee has helped Vanderbilt doctors respond to the most severe emergencies. Abortion requests can hit the committee’s inbox at any hour — at least two a month, but sometimes four in a week. When complications are urgently life-threatening — cardiac failure, Stage 3 kidney disease — doctors often coordinate through a few text messages and sign off that an abortion is medically indicated.

The committee has also developed critical protocols. If a patient’s water breaks before a fetus is viable, the administration considers it a medical emergency because the patient has a high chance of developing sepsis, which can lead to death. In those cases, it’s a blanket policy that doctors can offer abortion care, Osmundson said.

Other cases fall outside of the committee’s power. Osmundson said she has seen some doctors avoid the issue entirely, never informing their patients about the option to terminate their risky pregnancies; those cases never make it to the committee’s attention. The law also makes no exception for sexual assault or fetal anomaly cases, even when the pregnancy is not viable. Doctors direct these and other patients who want abortions to leave the state, if they can. In 2023, Osmundson counted 27 cases of nonviable pregnancies that were referred out of state.

It is those cases in the middle — potentially perilous, but not urgently deadly — that can feel like bombs hitting their inboxes, blasting shrapnel into the rest of their days as they turn over the particulars and try to come to a consensus.

The six doctors, five of whom are women, sometimes call one another up to hash it out. Other times, the discussion unfolds over email and can involve specialists from other departments. They respect one another and know they share the same goals, but the conversations can be heated and emotionally draining.

Last October, a challenging case came before the abortion committee, showcasing the murky limits of Tennessee’s exception.

The patient was seven weeks pregnant and stable, but with a medical history that would make delivery very high risk. Surgeons would need to make a vertical incision on her abdomen — a procedure Osmundson described as “fileting” the uterus — that could lead to permanent bladder or bowel damage due to the patient’s existing complications.

When Osmundson read the file, her mind ticked through worst-case scenarios if things didn’t go well: The patient might need to use an ostomy bag attached to her abdomen to dispel waste. She could suffer severe blood loss or develop sepsis. She could die. The patient already had children and, in a letter to her doctors, requested an abortion.

The challenge for the doctors: The patient had no immediate complications; the potential emergency would not occur until the baby was at full term and doctors were performing surgery. Was it enough to predict that a patient might suffer “substantial and irreversible impairment” or death, based on past case studies? Or did the emergency need to have actually begun?

The law doesn’t say. Nor does it give guidance on how doctors should interpret the spectrum of risk. Was a 50% chance of death or “substantial and irreversible impairment” enough to meet the standard of the law? Twenty percent? Ten? The law says only that an abortion must be “necessary” in a doctor’s “reasonable” medical judgment.

Committee members could see how a zealous prosecutor might challenge that judgment. Doctors like Osmundson often help manage risk for patients who choose to go forward with dangerous pregnancies; some make it through with few long-term issues. It wasn’t hard to imagine a scenario in which a prosecutor held up cases of women who had survived similar complications and pointed to one patient’s abortion as a crime. The penalties for violating the ban include up to 10 years in prison and a $15,000 fine. Doctors can also lose their medical licenses if they are criminally charged. Many have expressed that they would not trust jurors without medical training to evaluate their cases and decide their fate.

In that October case, one doctor argued that the patient’s condition did not fit the definition of a medical emergency because continuing the pregnancy itself would not cause direct harm to an organ — all of the risk would emerge at the time of delivery.

“Who are we to say what is too much or not enough risk?” another wrote. “Where is the line and why do we have to decide that?” But the doctor pointed out that if they offered the abortion, “nurses and other staff will be upset.”

A third wrote: “I unfortunately don't think this meets the criteria for the law and my interpretation even though it is the ethical right thing to do.”

A fourth: “If one of our purposes is to protect the physicians involved in the care of these patients, I think this case is too risky.”

Osmundson bit her lips as she read the responses. After work, as she cooked dinner for her family and played with her kids, she couldn’t stop thinking about the patient. It was one thing to choose to continue a high-risk pregnancy — another to be forced to. As a doctor who spent her career working with the most difficult cases, she knew better than anyone that even healthy pregnancies could suddenly turn life-threatening.

“I just watched a woman die from liver failure this weekend after a normal uncomplicated pregnancy,” Osmundson told them. “I’m finding it morally repugnant to force anyone to continue a pregnancy for a potential life when the pregnancy poses a real threat to her life.”

If the patient the committee was considering died, Osmundson felt they would all have blood on their hands.

“I cannot deny abortion care to a patient concerned about their medical safety,” she wrote.

The group punted the decision until the university’s ethics committee could weigh in.

The patient was left waiting on a faceless abortion committee to deliver its verdict as the clock ticked.

Soon after, Osmundson learned, the woman was no longer pregnant. Perhaps it was a miscarriage. Or perhaps, Osmundson thought, she had gotten fed up and taken measures into her own hands.

It saved the committee from making a difficult decision. This time.

The predicament is far worse at many other hospitals.

Plenty of doctors ProPublica interviewed don’t work at a well-resourced institution or have an administration that has promised criminal defense if they are prosecuted. And some hospitals rely on state funding, leaving them subject to the demands of lawmakers who could request their emails and protocols, which are public record. Many doctors requested anonymity to speak about sensitive internal matters, fearful they could land on the radar of state officials looking to target abortion providers.

There were wide variations in how their hospitals have navigated the post-Roe reality. Some had abortion committees, but many relied on informal networks among colleagues to make decisions. A few had developed protocols like Vanderbilt’s, but others still require signs of infection or bleeding in order to act, even in cases when a patient’s water breaks before viability. “We are trying to push the idea that the harm does not have to be immediate,” said Dr. Nisha Verma, an OB-GYN and abortion provider in Georgia. “But institutions want to protect themselves.”

Doctors recounted nurses saying they weren’t allowed to treat patients who needed urgent abortions to survive. One was bleeding out. Another was septic. “That’s part of our risk,” one doctor said. “You don’t know who you are working with, who will decide you need to run this by the district attorney.”

Doctors felt similar hesitation from their specialist colleagues, some of whom have balked at having to sign off on any abortion-related paperwork. One OB-GYN described trying to get a cardiologist to evaluate a pregnant patient with heart failure. “We got a ‘Look, we know what you guys are doing and we don’t agree with abortion, so we aren’t going to say she can have an abortion,’” the doctor said.

In other cases, specialists have been afraid to treat patients for fear of accidentally causing harm to a fetus. One OB-GYN said an oncologist at their hospital was reluctant to provide cancer treatment for a patient who wanted to continue their pregnancy, in case chemotherapy were to be misconstrued as an abortion.

Some doctors feel that instead of offering backup, their hospitals have siloed all responsibility to a few providers who would take the fall if an abortion case were challenged. “Care was dependent on each case and who saw the patient and what their risk tolerance was and their views about abortion,” said Dr. Jessica Tarleton, an OB-GYN and abortion provider in South Carolina who left her institution due to its handling of the ban. “It was like chaos all the time.”

Doctors have no clarity on whether they could face repercussions for offering abortions for life-threatening health risks that aren’t active emergencies.

Lawmakers and prosecutors don’t want to offer it.

In Tennessee, legislators sided with an anti-abortion group last year to defeat an effort to include clear exceptions for fatal fetal anomalies and broader health risks. A lobbyist for the group opposed language that would allow doctors to provide abortions to “prevent” emergencies because, he said, “that would mean that the emergency hasn’t even occurred yet.” And Attorney General Jonathan Skrmetti is fighting a legal effort aimed at getting a judge to clarify the ban’s exception; he argues that the state can’t be held liable for doctors “overcomplying” for fear of violating the law. The case is ongoing.

Anti-abortion groups that support the bans have advocated for the narrowest possible interpretation of exceptions. “We would want a stricter standard,” Blaine Conzatti, the president of Idaho Family Policy Center, told ProPublica in November. “The only appropriate reason for abortion would be treating the mother and the unintended consequence is the death of the preborn child.”

Meanwhile, officials have doubled down on their warnings about the consequences if doctors go too far.

Texas Attorney General Ken Paxton fought back against the Biden administration’s federal guidance to offer abortion care for patients with medical complications and threatened doctors with prosecution if they complied with a court’s order to offer emergency abortion care. And in Indiana, the Attorney General Todd Rokita investigated a doctor for sharing with the media that a 10-year-old rape victim had to go out of state to get an abortion.

“There aren’t many people who want to risk or just rely on the goodwill of the legislature and the attorney general or any politician in our state,” one doctor said. Penalties vary by state — in Texas a doctor could face 99 years behind bars.

No doctor has been prosecuted under their state’s abortion ban. But the few public glimpses into judges’ thinking hasn’t provided reassurance. Recently, a Texas court denied a doctor’s request to serve a woman who wanted an abortion because her fetus had a fatal anomaly. The doctor argued the woman shouldn’t be subject to the risks of carrying to term a baby that would not survive. The court said the doctor hadn’t proved her life was in danger.

Will a judge decide the same if a doctor is charged with a felony? Would a jury, or an appellate court, or ultimately the Supreme Court? “The bottom line,” said Dr. Emily Patel, a maternal-fetal medicine specialist in Nebraska, “we don’t know what [the exception] means and won’t know until it’s tested in a court of law.”

No doctor wants to be the first to stand trial. “I don’t know how you can overinterpret the law when you are looking at jail time,” said Dr. Dawn Bingham, an OB-GYN in South Carolina. “A prudent person would hear that and go, ‘Well I guess I will interpret that to be as safe as possible.’”

A year ago, Osmundson said, she could never have imagined arguing to strip her committee of its decision-making power and turning it into an advisory board. But now she believes it’s the only way to shield doctors from the ethical conflict of denying patients evidence-based care. “I feel like these committees are kind of making physicians become complicit in an unethical and unjust system,” she said.

Dr. Mack Goldberg, her committee colleague, knows the position perhaps better than anyone else. Unlike most of his colleagues, including Osmundson, he actually performs abortions; since clinics shuttered in the wake of the ban, he’s one of the only people in the state with the expertise and institutional support to do so for medical complications.

He knows the hospital submits paperwork to the state after each one. And while he recognizes that his colleagues are putting their names on the decisions, he feels more exposed. He often can’t shake the feeling of being constantly on call, his livelihood perpetually on the line, a burning question in the back of his mind: “When push comes to shove, if I ever got trudged through a court case, how many people will truly have my back?”

Dr. Mack Goldberg, an OB-GYN at Vanderbilt, is one of the only doctors in the state with the medical expertise and institutional support to perform abortions for medical complications. (Stacy Kranitz, special to ProPublica)

Despite all of the anguish it causes him to turn away some patients, Goldberg disagrees with Osmundson. He believes it’s important for doctors to continue walking the tightrope: Do as much as possible with the support of colleagues and their institution, while being honest with patients about their risks and options. He feels the committee has made it possible for him to save some lives by acting quickly, and he doesn’t want to leave the call to hospital administrators and lawyers, who may be even more risk averse.

”We are on the front lines,” he said. “At the end of the day, the patients are staring right in our faces.”

Late last year, he sighed heavily as he counseled the woman whose baby was developing without a skull and gently told her what he tells all of his patients in her position: that he had the training to help her, but because of Tennessee’s laws, he might face prosecution and jail time if he did. He had a baby at home and couldn’t take that risk, he explained. Instead he would refer her to options outside the state.

The patient, Charlotte Miller, told ProPublica she understood and appreciated his thorough counseling. But she was stricken to realize it would have been different had they been in her home state of Colorado.

When the 22-year-old sat across from Goldberg in his office, all she knew was that she didn’t want to spend the next six months putting her body through the hardships of pregnancy to give birth to a baby that would never survive.

Her first pregnancy had been challenging. She struggled with worsened asthma and endometriosis, a painful condition in which tissue grows outside of the uterus. The toll on her mental health alone would be enormous, she believed, and she didn’t want to risk any unexpected complications that could make getting pregnant again more difficult. She desperately desired another child, but in this case, the best option, she was certain, would be to deliver her baby as soon as possible — to have the chance to hold him and say goodbye.

Instead, her family would have to scrape together more than $1,200, a week of her partner’s paycheck as a waiter, so she could travel to a clinic in Illinois. There, her only choice would be a dilation and evacuation procedure while unconscious, not a delivery in which her baby could emerge intact and she could hold him in his last moments. Before it came to that, she lost the pregnancy naturally.

She’d been unaware of the committee’s debate about her health risks. When she learned of it, it only affirmed what she’d come to believe: “It’s just so disheartening to me that doctors can want to provide me care and not be able to because of what a law says, for fear that they would have repercussions.”

by Ken Armstrong

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When Baltimore police arrested Keyon Paylor in 2014, one of two things was true.

Either Paylor hid a gun that the police found, or the police planted the gun and framed Paylor.

The two things cannot both be true. Even so, the U.S. Department of Justice presented the first version as true while convicting Paylor of being a felon in possession of a firearm, then presented the second version as true while prosecuting a corrupt police detective who had arrested Paylor.

If you find this confounding, you’re not alone. When Paylor later challenged his conviction, the use of conflicting theories by the U.S. Department of Justice did not sit well with a judge on the 4th U.S. Circuit Court of Appeals.

“Which is the truth?” the judge, Stephanie Thacker, asked an assistant U.S. attorney during oral argument in 2021.

“Does the government not share at least my concern that the government has talked out of both sides of its mouth on this case?” she asked the prosecutor.

The case of Keyon Paylor — in which the 4th Circuit appeals court issued a strikingly blunt opinion two months ago — is but another in a string of cases in which prosecutors offer one version of the truth while trying one person, then offer a very different version while trying another person.

I wrote about contradictory prosecutions in 2017, and this ruling and others suggest the practice has not abated.

In U.S. v. Driggers, a case involving guns stolen from a train in Chicago, the defendant, Nathan Driggers, was convicted of being a felon in possession of a firearm. When prosecuting a co-defendant named Warren Gates, the federal government contended Gates bought guns from the train robbery from two other men. But in trying Driggers, the government contended Gates bought them from Driggers.

Confused? You are, again, not alone. The government denied using conflicting theories, but the 7th U.S. Circuit Court of Appeals wasn’t persuaded. In a 2019 opinion, it wrote, “The government has not explained to us (or to anyone else) how these two conflicting factual representations can coexist, and we are at a loss to reconcile them.” Still, the court upheld Driggers’ conviction.

In the cases I found previously, prosecutors presented shifting theories on which defendant stabbed someone, or chopped someone’s skull, or held someone’s head underwater. Most cases involved a gun: Prosecutors would say one defendant fired a fatal shot, then, in a separate trial, before a different trier of fact, say a different defendant fired it.

In 2009, in Lynn, Massachusetts, a state prosecutor argued that Bonrad Sok fired the single shot that killed a man outside a restaurant; six months later, in a separate trial, the same prosecutor said the shooter was actually Kevin Keo. Both men were convicted.

Sometimes, prosecutors offered not two versions of the truth, but three. In Stuart, Florida, a convenience store clerk was shot and killed in 1982. In a first trial, the prosecution argued John Earl Bush was the shooter; at a second trial, it argued Alphonso Cave was the shooter; at a third trial, it argued J.B. Parker was the shooter. All three men were convicted and sentenced to death. Bush was executed in 1996. Cave died last year while still on death row. Parker’s sentence last year was reduced to life, for reasons unrelated to the prosecution’s contradictory positions.

At least 29 men have been sentenced to death in the U.S. since the 1970s in cases where prosecutors were accused of presenting competing versions of the truth, from what I found searching legal cases. When prosecutors change their version of who did what, it can lead to more serious charges or harsher sentences for more people. But as one federal judge wrote in a capital case, “Such actions reduce criminal trials to mere gamesmanship and rob them of their supposed purpose of a search for truth.”

The U.S. Supreme Court has never ruled squarely on whether conflicting prosecution theories violate due process. Lower courts are divided. In a handful of cases, a court has overturned a conviction or a death sentence, finding the prosecution’s contradictory stances to be fundamentally unfair. But more often than not, courts have allowed the tactic, even as many have described it as unseemly or worse.

Jurors seem more taken aback by the conduct than many judges. For the 2017 article, I called a juror in a Missouri case in which the jury had convicted the defendant of being the second of two robbers in a fatal robbery. When I told her that the same prosecutor had argued, just two weeks before, in a separate trial, that the second robber was someone else, she gasped. “I think our justice system should actually be justice,” she said. Later, as we kept talking, she was so shaken that she began to cry.

The Prosecution’s First Version of the Truth

In January 2014, four Baltimore police officers arrested Paylor. One of the officers was Detective Daniel Hersl.

Hersl wrote up an incident report and probable cause statement, saying this is what happened:

The four officers were in an unmarked police car. They saw Paylor walking. When Paylor noticed the officers, he fled down the street. The officers followed in their car and saw Paylor arrive at his front porch, where he removed what appeared to be a black handgun from his waistband and put it under a chair cushion. Police lifted the cushion and found a loaded handgun.

Paylor, 22 at the time, had prior convictions on gun and drug charges, according to court records. After this arrest, he was indicted by a federal grand jury on a charge of illegal possession of a firearm by a felon.

Paylor’s version of what happened differs from Hersl’s. According to a brief filed by Paylor’s current lawyers, Paylor was simply walking home. When the police detained him in his home’s downstairs, one officer went upstairs and stole thousands of dollars from a bedroom dresser. Police planted the gun on his porch and framed him, Paylor said. After his arrest, he called relatives from a jail phone; in recorded conversations, he denied the gun was his, claimed the police stole his money and said, “Hersl plays a dirty game.”

At that point, Hersl had dozens of misconduct complaints and had been sued multiple times, according to court records. He was so notorious that in 2014, Young Moose, a Baltimore rapper, called Hersl out by name in his song “Fuck The Police.” (In a first-person account, D. Watkins, a University of Baltimore professor, would later call Hersl “arguably the most hated cop in Baltimore.”)

Paylor’s attorney, hoping to use Hersl’s history to discredit him, asked for every internal affairs department file in which Hersl had been accused of misconduct. Prosecutors turned over 30 files to the judge, who, in turn, allowed Paylor’s attorney to see only four of them and part of another, according to court records. Paylor’s attorney believed that provided too little ammunition to impeach Hersl and suggested Paylor plead guilty.\

The federal gun charge carried a maximum sentence of 10 years. Paylor was also accused of violating probation on a state charge, for which he was looking at another 15 years.

The government offered Paylor a deal: plead guilty and get five years on the federal charge and time served on the state charge.

Paylor took the deal — and at a hearing in 2015, the Justice Department presented its first version of the truth in this case.

Peter J. Martinez, an assistant U.S. attorney, appeared on behalf of the government. Asked by the judge for a summary of the facts, Martinez adopted Hersl’s version of events. He said if this case had gone to trial, the government would have proved, beyond a reasonable doubt, that the gun was Paylor’s and that he had tried to hide it from the police.

The Prosecution’s Second Version of the Truth

In 2015, the same year Paylor pleaded guilty, the FBI was investigating possible corruption within the Baltimore Police Department. The investigators eventually focused on a special unit called the Gun Trace Task Force. Task force officers, the federal investigation would show, were robbing people, many of them drug dealers who were unlikely to complain — and unlikely to be believed, if they did.

Officers were stealing money and planting evidence, the very sorts of behavior alleged by Paylor. “They were, simply put, both cops and robbers at the same time,” a federal prosecutor would say in court.

Hersl joined that task force in 2016 and became a key suspect.

In March 2017, the FBI arrested Hersl and six other task force officers on federal racketeering charges. (Another task force member would later be arrested, bringing the total to eight.)

The investigation continued after the initial arrests. Investigators listened to recorded phone calls made from jail by people arrested by Hersl and other task force members — and came across the calls made by Paylor.

The federal prosecutors handling this case were Leo Wise and Derek Hines.

Wise wrote a book about the case, “Who Speaks for You? The Inside Story of the Prosecutor Who Took Down Baltimore’s Most Crooked Cops.” “This is a story of belief and disbelief, of how I came to believe that the Task Force’s victims were telling the truth and the police officers were lying,” he wrote.

In the book, Wise wrote of how the recorded jail calls helped corroborate accounts that might otherwise be dismissed: “The jail calls were like time capsules; they told us what had happened and when it happened. If we ever got to trial, they could also help us convince a jury that the victims weren’t lying.”

In June 2017, Hines and FBI agents met with Paylor, according to court records. Paylor reiterated what he’d said in those calls, that he was innocent. Hines then put Paylor before a grand jury, where the Justice Department presented its second version of the truth in this case.

Paylor, under oath, testified that police framed him, planting the gun.

The Justice Department didn’t charge Hersl in connection with the Paylor case, but it did file a motion asking that Paylor’s sentence be reduced, saying Paylor had “provided substantial assistance to the government.” Paylor turned down the offer, telling his lawyer that “the risk of retaliation by the police was too high” if he went through with the motion, according to court records.

“There Cannot Be Two Sides to the Truth”

Hersl was convicted of racketeering offenses in February 2018 and sentenced to 18 years. Seven other members of the Gun Trace Task Force were also convicted. In the fallout, charges were dropped or convictions vacated in more than 800 cases the officers had handled, because their word could not be trusted.

The extent of the police misconduct was so great that the Baltimore city comptroller created a settlement tracker “to memorialize the devastating impact of the Gun Trace Task Force on our City.” To date, the city has settled 41 lawsuits for nearly $23 million, according to the tracker. Hersl was involved in 10 of those settled cases, the tracker says. Justin Fenton, a reporter now with the Baltimore Banner, wrote a book about the scandal, “We Own This City,” which was the basis for an HBO miniseries with the same name. Fenton has also written about the Paylor case.

In March 2018 — one month after Hersl was convicted — Paylor filed a motion asking that his own conviction be vacated. The Justice Department opposed Paylor’s request, and in 2019, a U.S. District Court judge denied the motion.

The case then went to the 4th U.S. Circuit Court of Appeals, where one of the issues was whether the federal government could contradict itself: Should the government be allowed to defend Paylor’s conviction after having presented him, to a grand jury, as a victim of a corrupt police officer?

At the 2021 oral argument, conducted by video conference because of the pandemic, Paylor’s lawyer was Debra Loevy, executive director of the Exoneration Project, a free legal clinic whose staff represents people they believe were wrongfully convicted. Loevy told the court that the government vouched for Paylor while going after the police, “and then they threw him under the bus.”

The lawyer representing the federal government was Martinez, the same prosecutor who had helped secure Paylor’s conviction.

“Let me ask you this,” Judge Thacker, who had previously been a federal prosecutor herself, said to Martinez. “In the government’s view, was Mr. Paylor’s testimony at his plea hearing the truth, or was his testimony at the grand jury, that the government put on, the truth?”

“Very much the former, your Honor,” Martinez said.

“So the government put on testimony in the grand jury that was not truthful?” Thacker said.

Martinez wouldn’t give a yes or no. He said prosecutors put Paylor before the grand jury immediately after investigators interviewed him.

The judge pressed. “They can’t both be true,” she said of the two accounts.

“His sworn admission of guilt is the truth. His grand jury testimony is false,” Martinez said.

“All right, all right, so then the government did suborn perjury in the grand jury?” the judge said.

Again, Martinez avoided a yes or no. Instead, he said that while prosecutors can’t knowingly present perjured testimony, the grand jury “is an investigative tool,” and prosecutors often put witnesses in the grand jury while still vetting their reliability.

But Paylor had pleaded guilty, the judge said. And the government knew that. “So the government had to think that what he was saying in the grand jury was true, and what he said at the plea hearing was not true,” Thacker said.

“I’m not going to speak to the mental state of the prosecutor who put Paylor in the grand jury,” Martinez said.

The judge asked Martinez, “The government didn’t feel an obligation to get to the truth before it put somebody in the grand jury, under oath, to say something completely opposed to what he had pled guilty to?”

In the back-and-forth, Martinez said that after Paylor’s grand jury testimony, the government further investigated Paylor’s claim of being framed and concluded it was false. And ultimately, Martinez said, Paylor’s claim wasn’t used in any charge against Hersl or mentioned in Hersl’s trial or sentencing. (Loevy, Paylor’s attorney, disputed that the government’s subsequent investigation undermined Paylor’s claim of innocence.)

Thacker had few kind words for the government, saying it “hasn’t been the best judge of who’s telling the truth in this case.”

Loevy, in a recent interview, said, “I don’t recall ever having an argument like that — where the court was that vocally angry at one side’s position.”

Two months ago, the three-judge panel issued a unanimous opinion, written by Thacker.

The court didn’t vacate Paylor’s conviction, but for Paylor’s lawyers, it did the next best thing. The court’s ruling returned the case to a lower court for a hearing at which Paylor’s attorneys will have the chance to present evidence of the breadth of Hersl’s misconduct, particularly any instances that preceded Paylor’s guilty plea. The ruling authorized Paylor’s attorneys to conduct discovery, meaning they can now have access to records they were previously denied; plus, they can depose Hersl, asking him questions under oath.

“This case presents the extraordinary circumstance in which the Government has taken antithetical stances supporting two completely different versions of the truth relative to Appellant’s offense of conviction,” Thacker wrote. “But, there cannot be two sides to the truth. The truth is the truth.”

The judge wrote: “The Government’s two-faced positions and contrary statements before the court are clearly at odds with the notion of justice.”

“Thanks!”

I wanted to ask the various prosecutors in this matter about the 4th Circuit’s opinion lambasting the government.

I emailed Martinez, who left the Department of Justice and now works for a large law firm. He emailed back, saying: “As I understand the relevant DOJ regulations, I am prohibited from speaking with you, absent authorization, regarding the work I did in the United States Attorney’s Office.”

The Justice Department separately sent me an email, saying, “We are not commenting on this case, nor are we authorizing Mr. Martinez to comment.” Can I speak with Derek Hines and Leo Wise? I wrote back. “Department guidelines generally prohibit commenting on pending cases, therefore Wise and Hines are not authorized to sit for an interview. Thanks!” the Justice Department responded.

Wise and Hines are both now working on the DOJ team prosecuting Hunter Biden, the president’s son, on gun and tax charges.

Hersl asked last fall to be released early from prison on grounds of compassion. An emergency motion said Hersl has been diagnosed with metastatic prostate cancer; a doctor, in September, wrote that Hersl’s life expectancy is less than 18 months. The DOJ opposed the motion — noting, among other things, that Hersl has shown no remorse, continuing to maintain his innocence — and a judge denied Hersl’s request.

Hersl was represented at his trial by William Purpura. Purpura, in an interview with ProPublica, said he once asked Hersl if he ever planted a gun on anyone. Hersl laughed, according to Purpura, and said no, that in Baltimore there’s no need to put a gun on someone.

In 2021, while this appeal was pending, Paylor pleaded guilty to a state robbery charge and was returned to prison. He got back out in December.

Paylor was released from prison last month, after serving time in a robbery case. Before that, he had already served his sentence on the gun charge involving Hersl. I asked Gayle Horn, another of Paylor’s lawyers, why they keep fighting that 2015 conviction, and she said, “We’d like to see justice be done.”

Paylor, asked the same question, said: “Because from day one, I’ve been telling people I was innocent.

“Now I’m just trying to clear my name.”

Do You Have a Tip for ProPublica? Help Us Do Journalism.

Update, Feb. 29, 2024: On Feb. 28, two days after ProPublica published this story, the U.S. Department of Justice filed a document in U.S. District Court reversing its previous position and conceding that Keyon Paylor’s conviction should be vacated “in the interest of justice.” The DOJ defended its earlier use of opposing theories as “based on the government’s reasonable belief in the evidence” but stated that “public confidence cannot sustain irreconcilable versions of one event.”

Gayle Horn, one of Paylor’s attorneys, told ProPublica, “We are grateful to the U.S. Attorney for taking a fresh look at this case and recognizing that Mr. Paylor’s conviction should be vacated.” Referring to the “irreconcilable versions” cited by the DOJ, Horn said, “And I would just add that Mr. Paylor’s version is the truthful one.”

by Kyle Hopkins, Anchorage Daily News, and Casey Grove, Alaska Public Media

This article contains descriptions of sexual violence.

This article was produced for ProPublica’s Local Reporting Network in partnership with the Anchorage Daily News and Alaska Public Media. Sign up for Dispatches to get stories like this one as soon as they are published.

The Iditarod Trail Sled Dog Race on Thursday voted to disqualify a former champion from this year’s event following accusations he sexually assaulted multiple women.

The decision on Brent Sass, 44, came nearly four months after the race received a letter from an official at Planned Parenthood Alliance Advocates Alaska on behalf of women who the letter writer said had accused Sass of sexual assault. The unanimous vote by the Iditarod Trail Committee Board also came a week after Alaska Public Media, the Anchorage Daily News and ProPublica first asked it about sexual assault allegations against Sass. The news organizations sent the Iditarod additional questions on Wednesday, and other outlets have made inquiries.

Sass denied the accusations in an interview on Tuesday with the newsrooms. “It’s all made up. None of this is true,” he said. “This is because they want to ruin my career.”

The Iditarod Trail Committee Board said its decision was based on the race rulebook’s personal conduct policy, which includes the statement, “Musher conduct that is recklessly injurious to the Iditarod, Iditarod competitors, sponsors or anyone associated with the race is strictly prohibited.” The 2024 event begins on March 2.

Sass on Friday posted a message on social media linking the disqualification to sexual assault allegations.

“You are giving the accusers exactly what they are hoping for and in the end this hurts the actual victims of sexual abuse and the sport of mushing,” he wrote. He did not respond to requests for comment after he was disqualified.

Sass, who won the Iditarod in 2022, was the second competitor to be disqualified this week by the race’s board. It said on Monday it would not allow musher Eddie Burke Jr., who faced a felony domestic violence charge, to compete, but the Iditarod reversed itself Friday after the state Department of Law said it was dropping the case. Burke said on Facebook that he is innocent.

The Planned Parenthood letter about Sass did not provide the names of any accusers. Independently, the newsrooms spoke with two women who said that Sass forced them to have sex within otherwise consensual sexual relationships that took place more than a decade ago. The newsrooms typically do not name people who allege sexual violence unless they choose to be named. The women did not file complaints with the police nor did they file lawsuits against Sass, who has not been charged with a crime.

The news organizations obtained correspondence and conducted interviews indicating the women shared information in the past about the events they are now describing. The accounts these sources provided generally supported what the two women say now.

One of the accusers said that on one occasion, Sass choked her and forced her to have sexual intercourse after she told him no. A different time, she said he forced her to have anal sex. She said on both occasions she was unable to physically stop Sass. Two of the woman’s friends also spoke to the newsrooms and, in separate conversations, said she had told them years prior about Sass having nonconsensual sex with her. The newsrooms also obtained a sworn and notarized statement that the woman prepared saying Sass had twice sexually assaulted her.

The second woman told the news organizations that Sass hit and slapped her during sex without her consent, forced her to perform oral sex on multiple occasions and forced her to have intercourse in one case after she said no. She provided the newsrooms with a letter from the Interior Alaska Center for Non-Violent Living dated Dec. 30 stating that in 2015 she had been a client of the Fairbanks domestic violence shelter, which describes itself as a provider of support and advocacy for victims of domestic violence and sexual assault, and had “identified Brent Sass as her abuser.” The woman also provided three emails sent over a two-year period telling friends and family that Sass had sexually assaulted her.

The first accuser said she didn’t go to the police at the time because she was not thinking clearly, depended on Sass for shelter at his remote dog kennel and worked for him. She said it took her time to realize what happened to her was wrong.

The second accuser said she considered going to the police but had little faith it would do any good. “Our society is highly prone to victim shaming,” she wrote to a family member at the time.

Dog mushing is the official state sport in Alaska, where sexual assault rates are highest in the nation. The Iditarod, a 1,000-mile race across the Alaska wilderness, is set to include roughly 40 competitors this year.

The Iditarod and other top sled dog races received the Planned Parenthood letter dated Nov. 2 and signed by Rose O’Hara-Jolley, the organization’s Alaska state director. It said O’Hara-Jolley had been approached by “multiple survivors” alleging sexual assault by Sass over the course of a decade.

Without providing specifics or evidence, the letter called on races to ban Sass from competing.

It is not clear how much of the information that the news organizations subsequently obtained from two women and additional sources may have been in the possession of the Iditarod when its board voted Thursday.

The newsrooms obtained a copy of a Feb. 5 email from an Iditarod lawyer, Mike Grisham, to a dog musher concerned about the Planned Parenthood letter, Emily Rosenblatt, saying the race’s governing board couldn’t speak to allegations involving a racer but adding the following:

“To be clear, this board committee is in no position to be an arbiter of evidence or to decide disputes regarding a musher’s conduct. The Iditarod lacks the resources to conduct such an investigation and process, nor is it an appropriate role for the Iditarod to play.”

The news organizations contacted Iditarod officials on Feb. 15 asking about what they had learned about sexual misconduct allegations against Sass and how they had responded. The officials did not answer the newsrooms’ written questions.

A day later, the Iditarod board issued an email to competitors saying it had been “informed of a number of accusations being made within our community concerning violence and abuse against women.” The email said the board condemned such behavior, was “monitoring the situation closely” and wouldn’t hesitate to act if the situation required it.

Another race, the Bethel-based Kuskokwim 300, asked Sass in December to withdraw from its competition in a letter and provided him with information it had obtained in addition to the Nov. 2 Planned Parenthood letter, and he withdrew, according to documents obtained by the news organizations.

A board member for the Fairbanks-based Yukon Quest Alaska said she resigned after learning about how the race was handling the accusations.

The race’s board president, Mark Weber, told the news organizations the Yukon Quest Alaska was taking the accusations seriously but said he told Sass before the Feb. 3 race start that “with the information we currently have we are not taking any action at this time.”

Sass, in addition to denying the two women’s accounts, stated more broadly in his interview Tuesday: “I have never, ever, ever, ever, ever had nonconsensual sex with anyone. I am a respectful, upstanding human being.”

In an interview, one of the women who shared her allegations with the newsrooms said she was a young adult when she moved to Alaska to work for Sass as a dog handler. Eventually, they started having sex, she said.

She said they were in a sauna together one time when Sass said he wanted to have sex with her.

“I said, ‘No.’ He pushed me against the wall, put his hand around my throat, choking me,” she said.

Sass proceeded to have sex with her, she said.

Another time, the woman said, she and Sass were having consensual intercourse when he told her he wanted to have anal sex. She said she told him “fuck no” but was unable to stop him.

The woman said she recalled Sass responding that he was going to do it anyway.

“I was, you know, underneath him, so I couldn’t really do much about it,” she said.

In the sworn statement, the woman wrote, “Brent also from time to time, without my consent, would slap me, sometimes in the face, during sex with him.”

The woman provided the news organizations a copy of a journal entry dated during the time she worked for Sass saying he suddenly slapped her in the face while they were having sex.

A friend of the woman who asked not to be named also said the accuser told her that Sass had hit her during sex.

Sass told the newsrooms that he never hit women during sex and denied each specific allegation from the former dog handler.

“None of that happened,” Sass said. “I’m going to flat out deny it. None of it happened. These are personal attacks. People just don’t want me in the sport anymore.”

The former dog handler said she was motivated to write the sworn statement in order to warn others, perhaps young women thinking about working for Sass.

The woman said she did not communicate with Planned Parenthood or the author of the Nov. 2 letter at any point before it was sent out. She said she didn’t learn about the letter until December and wrote her sworn statement in early February.

Hannah Corral, who said she was friends with the alleged victim, said the woman told her more than a decade ago about nonconsensual sex with Sass that the woman said occurred a year or two earlier.

“So she told me some pretty graphic things about some times that he definitely went over the border of consensual in a big way and was violent,” Corral said in an interview Thursday. “And, you know, she would just get very uncomfortable and sad and didn’t really know how to handle it, because she was also working with him still.”

Another one of the victim’s friends, Melanie Richter, told the newsrooms that the former dog handler told her in roughly the same time period that she had experienced nonconsensual sex with Sass in the years before she and Richter met.

“She had mentioned that he was quite aggressive and did not take no for an answer for any of his sexual advances,” Richter said.

“She didn’t have a way to get out of it while it was happening, because now they’re in a remote place,” Richter said. “There’s essentially no one, and he is her source of housing, food and income in the middle of Alaska, where she didn’t really have anybody else. And so she was just trapped at the time.”

The second woman who shared her allegations with the newsrooms also said she spent time in a consensual relationship with Sass and said he forced her to engage in sex acts to which she didn’t consent.

“I was actively saying, ‘Stop,’” she said in an interview, describing an encounter in which she said Sass forced her to have anal sex.

She also said that Sass physically abused her without her consent during sex.

The woman once described the relationship in a 2016 email to a family member. She provided a copy to the newsrooms.

In the email, the woman told her relative that Sass during sex “choked, hit, bit and otherwise caused me a lot of physical pain, all without prior consent, or any discussion on these activities.”

The woman also wrote: “When the day came that I was brave enough and in enough pain to say ‘no’ and ‘stop’ multiple times he completely ignored me. On multiple occasions, he forced me to perform oral sex.”

She told the relative that she didn’t think reporting Sass to the police would do any good.

“Why don’t I take legal action?” the woman wrote. “I’ve thought about it. Rape is extremely difficult to prove, and our society is highly prone to victim shaming. I have little faith the result would be positive for me. I struggle with the fact that he is a quasi-public figure with a sunshiney, heroic reputation. I do want people to know the truth, but it’s not a truth that people want to hear, or are likely to accept.”

The woman also provided the letter from the Interior Alaska Center for Non-Violent Living, which she said she visited to ask for resources for sexual assault victims.

The woman said she was in contact with the Planned Parenthood letter writer about Sass six years ago but was unaware of the organization’s Nov. 2 letter until after it was sent.

Sass denied the second woman’s allegations when presented with her statements to the newsrooms and a description of her 2016 email and the shelter’s letter.

“I didn’t do anything,” Sass said.

“I am being tore apart by this,” he added, “because of these false accusations.”

“The mental abuse that's happening to me right now is outrageous,” he said.

The second woman told a relative in the 2016 email that Sass warned her that “if I said anything to anyone in Fairbanks that was bad about him he would ruin me.”

Sass said Tuesday he never threatened anyone.

“If they felt that way,” Sass said, “I would tell them, ‘Tell somebody.’ If they felt that way, I would be talking it out. I would never tell anyone to hide it or just not say anything.”

The Planned Parenthood letter to officials at top races followed an allegation of sexual assault that reached the Kuskokwim 300 Race Committee in early October, according to a document that the race gave the newsrooms labeled “Factual Statement on Brent Sass.”

Sass said a fellow musher, who serves on the board for another race, the Knik 200, first told him about the Planned Parenthood letter. Sass said he knew the Planned Parenthood official, O’Hara-Jolley, as a friend whom he’d hung out with and encountered at races.

“This totally came out of the blue,” he said of O’Hara-Jolley’s letter.

He said copies of the letter went to all sled dog races where he’d registered as a competitor and also made their way into the hands of his sponsors.

Sass said he immediately began phoning race managers.

“I called everybody and just said: ‘Hey, these accusations are out there. They are completely false.’”

Sass said he hired an attorney, who sent a letter to O’Hara-Jolley.

The message was that O’Hara-Jolley “needed to shut up. That was the bottom line of the cease and desist,” Sass told the newsrooms.

O’Hara-Jolley declined the news organizations’ request for comment.

The K300 asked Sass to voluntarily withdraw from the 2024 event in a letter from race director Paul Basile on Dec. 12.

“Our organization does not have the capacity nor the desire to conduct an investigation of such matters. But while we can’t prove or disprove the allegations made against you, we feel that to dismiss them entirely would be irresponsible,” Basile wrote to Sass.

He wrote that one longtime volunteer told the race she would “have nothing to do” with it if Sass participated this year.

“Rates of sexual assault, sexual abuse and rape in our region are the highest in the nation,” Basile wrote. “Rape is obviously a serious issue anywhere, but it is an especially serious and sensitive issue here, where so many are survivors of sexual violence.”

Sass replied two days later, Dec. 14, asking the K300 organizers to reconsider. He said the sport’s premier sled dog race, the Iditarod, had “conducted a three-week investigation” and closed its inquiry “due to insufficient information.” (The Iditarod, when asked by the news organizations to address Sass’ assertion, said the race does not comment about its processes for reviewing allegations.)

In his letter to the K300, Sass wrote of the request for him to withdraw: “I understand the importance of community and the need to have their support but the K300 had the ability to change the narrative, to do something, anything to protect one of the sport’s most well known and competitive mushers.”

He told the board he would withdraw if the board decided, upon further consideration, it still wanted him to do so.

The K300’s statement said the board continued to gather information. On Dec. 21, the board voted to uphold its earlier decision asking Sass to withdraw, the document said. He did not compete.

Another premier sled dog race, the Yukon Quest Alaska, made a different decision after receiving the Nov. 2 Planned Parenthood letter.

The race, which Sass won in 2015, 2019 and 2020, was originally 1,000 miles and crossed the border between Alaska and Canada. It fractured in 2022 when American and Canadian organizers disagreed over rule changes. The two organizations now run shorter, separate races.

Sass said Weber, the Yukon Quest Alaska board president, told him after the Planned Parenthood letter that the board was not investigating.

“‘We stand by you Brent,’ is basically what his statement was,” Sass said. “‘We stand by you and we’re not going to pursue this in any way.’”

Weber confirmed he told Sass the board was not taking action but denied Sass’ claims that he voiced support for Sass or was dismissive toward the allegations.

Yukon Quest Alaska board member Jodi Bailey said she resigned on Nov. 17 because the race did not investigate the accusations.

“I was told that this might be bad for Brent and we needed to try and keep this quiet,” said Bailey, a Quest and Iditarod veteran. She said the person who told her that was Weber.

He denied making the statement to Bailey.

“The only position I had was that this was a serious allegation and that it was tragic no matter what the truth because people[’s] lives are going to be affected forever,” Weber wrote in an email. “I did not want our board to be involved in the ‘spreading’ of the allegation because we had no facts.”

Sass was allowed to compete in the Yukon Quest Alaska and on Feb. 5 won first place, receiving $7,500 among other prizes.

After obtaining copies of the Planned Parenthood letter, the Daily News, Alaska Public Media and ProPublica contacted people including some of Sass’ female former dog handlers, who were identified through social media and archived pages of Sass’ kennel website.

One woman declined to comment. Two said they had never had sex with Sass. Another wrote in a direct message, “I have had a very good experience being a handler for Brent, and I’ve never felt unsafe or anything like that around him.”

On Friday, Sass’ kennel’s Instagram page carried a letter that he had addressed to the Iditarod. The letter is undated, but the wording suggests it was written after the race board asked him to voluntarily withdraw last week but prior to his Iditarod disqualification on Thursday.

“I cannot afford to back out,” Sass wrote in the letter. “I have way too many sponsors, family and friends that have supported my kennel and my career this season. Let alone the 120,000+ fans that are eagerly waiting to watch me race in this year’s Iditarod.”

On Wednesday, with Sass still in the race, Iditarod chief executive Rob Urbach responded to a second set of emailed questions from the news organizations with a statement:

“We take all allegations of misconduct involving mushers, staff, volunteers and other community members seriously,” he wrote. “The Iditarod has processes in place to review allegations and act accordingly, but we do not comment on our processes and will provide a statement if and when any actions are taken.”

The next day, Sass was removed from the race.

by Cassandra Jaramillo

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

Over the past decade, the rate of veterans suffering severe pregnancy complications has risen dramatically, a new federal report found.

Veterans have raced to the hospital with dangerous infections, kidney failure, aneurysms or blood loss. They’ve required hysterectomies, breathing machines and blood transfusions to save their lives. Between 2011 and 2020, 13 veterans died after such complications.

The report found that among people getting health care benefits through the Department of Veterans Affairs, the rate of severe complications nearly doubled during that time, from about 93 per 10,000 hospitalizations in 2011 to just over 184 per 10,000 hospitalizations in 2020. Black veterans had the highest rates.

The report, which was put together by the Government Accountability Office, also made recommendations for reducing the problem, which focus on conducting more routine screenings throughout pregnancy and in the postpartum period.

“It is imperative that the VA help ensure veterans have the healthiest pregnancy outcomes possible,” the report said, highlighting the increasing number of veterans using the agency’s maternity benefits as well as the troublesome complication rates faced by Black women.

The report’s findings are an unfortunate trend, said Alyssa Hundrup, director of health care at the GAO. The office analyzed data on 40,000 hospitalizations related to deliveries paid for by the VA. It captures a time period before 21 states banned or greatly restricted abortion and the military was thrust into a political battle over whether it would pay for active service members to travel for abortion care if a pregnancy was a risk to their health.

Hundrup, who led the review, said the analysis included hospital records from days after delivery to a year postpartum. The report was mandated after Congress passed a law in 2021 that aimed to address the maternal health crisis among veterans. The law led to a $15 million investment in maternity care coordination programs for veterans.

The report recommended that the VA analyze and collect more data on severe complications as well as data on the mental health, race and ethnicity of veterans who experience complications to understand the causes behind the increase and the reasons for the disparity. The report also states that oversight is needed to ensure screenings are being completed.

Studies show there’s a connection between mental health conditions and pregnancy-related complications, VA officials said.

The report recommended expanding the screening questions that providers ask patients at appointments to glean more information about their mental health, including anxiety and PTSD symptoms. It urged the VA to review the data more regularly.

“You don’t know what you don’t measure,” Hundrup said in an interview with ProPublica.

The VA health system, which historically served a male population, does not provide maternity care at its facilities. Instead, the agency has outsourced maternity care. But when patients were treated by those providers, the VA failed to track whether they were getting screened for other health issues and mental health problems.

Officials hope the improved data collection will help the VA study underlying issues that may lead to complications. For example, do higher rates of anxiety have a connection to rates of high blood pressure in pregnant people?

VA officials are working with a maternal health review committee to monitor the data as it is gathered. The agency recently conducted its first review of data going back five years about pregnancy-related complications, said Dr. Amanda Johnson, acting deputy chief officer of the VA’s Office of Women’s Health, who is overseeing the implementation of the report’s recommendations.

The VA has created a dashboard to monitor pregnant veterans’ health outcomes. The VA’s data analysis team will also examine the impact of veterans’ ages on complications and whether they differ for people who live in urban and rural areas.

VA officials will begin to review mental health screenings conducted by maternal care coordinators in March. The coordinators advocate for veterans, helping them between health care visits, whether their providers are inside or outside the VA.

Johnson said that reducing racial and ethnic disparities is a priority for the agency. In 2018, ProPublica published “Lost Mothers,” a series that shed light on the country’s maternal health crisis. Studies have shown that in the general population, Black women are three times more likely than white women to die from pregnancy-related complications. While deaths made up only a small portion of the bad outcomes for Black veterans cited in the report, VA care could not spare them from elevated rates of severe complications. Johnson said the maternal health crisis also persists within the VA.

“There is a disparity,” Johnson said. “We are not immune to that.”

Research shows pregnant people who have used the VA’s coverage have higher rates of trauma and mental conditions that can increase their risks of complications and bad outcomes.

This may be because many people who join the military enter it having already faced trauma, said Dr. Laura Miller, a psychiatrist and the medical director of reproductive mental health at the VA.

She said veterans with PTSD have higher rates of complications such as preeclampsia, a potentially fatal condition related to high blood pressure, gestational diabetes and postpartum depression. If untreated during pregnancy, depression also increases the likelihood of preterm birth and lingering problems for babies.

Hundrup said she hopes this proactive work will improve maternal health.

“We want these numbers trending in the other direction,” Hundrup said.

Correction

March 5, 2023: This story originally gave an incorrect title for Dr. Amanda Johnson. She is the acting deputy chief officer, not the acting head, of the VA’s Office of Women’s Health.

by Byard Duncan, ProPublica, and Patrick Lohmann, Source New Mexico, photography by Adria Malcolm for ProPublica

This article was produced in partnership with Source New Mexico, which was a member of ProPublica’s Local Reporting Network in 2023. Sign up for Dispatches to get stories like this one as soon as they are published.

Survivors of the Hermits Peak-Calf Canyon Fire have lessons for the rest of the country.

These residents, whose property and livelihoods were destroyed by a wildfire accidentally triggered by the U.S. government in 2022, have become reluctant students of forest management and evacuation, disaster aid and bureaucracy, trauma and resiliency.

The potential audience for these lessons is growing. The number of Americans in the continental U.S. directly exposed to wildfires more than doubled between 2000 and 2019. Record-setting blazes have become common in the West, where risks have reached “crisis proportions,” according to the U.S. Forest Service.

One way the Forest Service limits wildfire damage is by burning off acres of brush and other vegetation that can fuel a megafire. It plans to thin or burn 50 million additional acres in the next decade or so — up to a fourfold increase from recent years in parts of the West.

But these fires come with their own hazards. Roughly six of them escape and risk becoming wildfires each year, according to the Forest Service. Prescribed burns in New Mexico triggered two major blazes in 2022, including the Hermits Peak-Calf Canyon Fire, the largest in state history. That led Congress, for the second time in 23 years, to pass a law to compensate victims of a wildfire triggered by the federal government. Both occurred in New Mexico.

Over the past year, Source New Mexico and ProPublica have interviewed dozens of survivors of the Hermits Peak-Calf Canyon Fire. We found that the Federal Emergency Management Agency provided little temporary housing to victims and has so far paid a small fraction of a roughly $4 billion fund to make the community whole and restore the landscape. Some victims say that unless FEMA pays for intangible losses like the stress of being displaced from home and the lost enjoyment of their land, they won’t be able to recover. Many residents described an uneasy state of limbo: forced off their property, out of work, unable to rebuild.

“With climate collapse, this scenario is set to repeat itself over and over across the country,” Cyn Palmer, a retired wildlife manager whose home was damaged by the wildfire, said in an email. “FEMA and the government has an opportunity here to learn how to respond differently, and better than previously. I hope they do.”

FEMA has maintained that it is moving as fast as it can to do a job that’s substantially different from its typical duty of providing short-term disaster aid. The agency opened field offices, hired staff and generated policies within eight months. As of Feb. 14, it has paid $391 million to individuals, government bodies and nonprofits. Although that’s just 10% of the $3.95 billion allocated by Congress, it’s 69% of the $565 million in claims that have all documentation and are being reviewed or have been, according to FEMA spokesperson John Mills.

“FEMA is committed to speeding up the claims process and maximizing payments to people affected by the fire,” Mills wrote in a statement to Source and ProPublica. “We are committed to working with people one-on-one to help with their specific needs.” The agency, he wrote, regularly holds town hall meetings and has provided residents with a list of the types of documents they can use to show what they lost in the fire.

As survivors navigate the recovery process, we asked about 30 of them what they would want the rest of the country to know, and see, about their experiences.

This is what they told us.

First you’ll lose things. Then you’ll need to prove that you lost them.

Some families who lost homes trace their roots in the area back hundreds of years. Many properties had been passed down without transferring deeds, making it difficult to prove ownership when seeking government aid and payment for losses.

Yolanda Cruz on her property in Manuelitas, New Mexico. She estimates that half of the trees on her land were reduced to “black sticks.”

“I absolutely honor the need to make sure that there’s not people trying to take advantage of the system. … But when you have the trauma of losing anything — and especially your home, and everything in it — having that additional trauma of being almost made to feel like you’re under the spotlight, everything is being examined, you need to prove everything? That’s trauma on top of trauma.” — Yolanda Cruz, who has spent months helping her elderly parents navigate FEMA’s claims process

Jeannie Allen, left, and Bill Nevins in their home in Albuquerque, New Mexico. Their vacation home in the Black Lake area was spared, but their friends’ and neighbors’ homes weren’t.

“These people who have lived here for many generations on the same piece of land don’t always necessarily have the paperwork for it. And so I would recommend everybody in the country, make sure you’ve got your paperwork.” — Jeannie Allen, who said some people she knows struggled to provide documentation of what they lost in the fire

Juan Ortiz at the site of his former home in Rociada, New Mexico. The fire left just the stone walls and fireplace of the house his father had built. Without barns, fencing or corrals, he was forced to sell his cattle.

“They act like you’re lying.” — Juan Ortiz, who said he gave up on FEMA’s rental assistance program because he felt he was treated like a criminal for asking for aid

You may get government help; you may not. Either way, it will take a toll.

Residents who fought for disaster aid and are now waiting for checks to rebuild described the logistical hurdles and emotional cost.

Jane Lumsden at the site of her new home in Cañoncito de las Manuelitas, New Mexico. The house is partially constructed from timber salvaged after the fire.

“The people from FEMA, I mean, they came in and they were all very kind. The kindness was there. They were just inept at what they were doing. It’s a year and a half later, and people haven’t gotten anything.” — Jane Lumsden, who is withdrawing money from her retirement account to rebuild until her lawyer finishes the long process of calculating her losses

Janna Lopez at First United Methodist Church of Las Vegas, near the burn scar. A volunteer group she founded meets in a church office to dole out grants to victims of the fire while they await rebuilding money from FEMA.

“Our clients are ready to give up. And we tell them, don’t give up. This is money you’re entitled to. The government should pay for this damage. These relief funds should come to you to assist. But I think if they don’t have that support system in place, it’s easy for them to walk away.” — Janna Lopez, a retired state employee who founded Neighbors Helping Neighbors, a grassroots fire recovery organization

Art Vigil in front of his manufactured home after it was delivered to his property in Rociada, New Mexico, in February. He said he wasted months trying to get into FEMA’s temporary housing and then spent months more navigating paperwork and weather to get the new home onto his land.

“I’ve never been that stressed out as I am now just trying to get this shit taken care of. ... The other day, I thought I was getting a heart attack from the stress, you know. I went and got an EKG.” — Art Vigil, who pulled out of FEMA’s temporary housing program after repeated problems and is now trying to decide whether to hire a lawyer to pursue his damage claims

You’ll lean on friends and family. But those relationships will be tested.

People sprang into action to help one another. Over time, though, the stress has eroded marriages and driven some into isolation.

Lea Knutson in Cañoncito de las Manuelitas, New Mexico

“As much as the government might come in and try to take over in a disaster, it’s really neighbors helping neighbors. The better your relationships are with your community, the more resources you have. And then the more ability you have to give something. If you don’t have any connections, if you don’t know your neighbors, you’re just all on your own.” — Lea Knutson, whose environmental restoration nonprofit grew dramatically after the fire “There is so much red tape. It just gets so complicated, so discouraging. It’s even getting between me and my wife. We made a deal between the two of us that if we argue over an issue, I says, at the end of the day, we will give ourselves our sorries if I said anything I shouldn’t have said. That’s already helped us be able to deal with it. We’ll apologize to each other or we go for a walk, but we try not to even talk about it right after.” — Donato Sena, a former local police chief who died in November while waiting for money to rebuild his home

Loma Hembree, left, and David Hembree in their trailer at an RV park in La Cienega, New Mexico

“We’re not very nice people from day to day. I’ll put it that way. The stress and the strain has taken its toll. … I don’t like the person I am. I’m irritable, restless and discontent.” — Loma Hembree, who has been living with her husband in a cramped RV for more than a year after losing their home

Accountability needs to be part of fire prevention.

The officials responsible for one of the prescribed burns that triggered the wildfire underestimated the danger of dry, windy conditions and didn’t have enough backup staff on-site, according to a review by the Forest Service. Survivors aren’t satisfied with the answers they’ve gotten about how that happened. A spokesperson for the Forest Service said the wildfire prompted the agency to examine how to do its work safely and that no single person was responsible for the fire.

Heather Vuchinich, right, and Miguel Ani in their Las Tusas, New Mexico, home, which is still contaminated with soot

“Having gone through three wildfires that were basically caused by human error — even though there is a climate change influence on it all — these all could have been prevented if we had better infrastructure in place. … So the fact that there were no backup systems in place after the fire that took place in Los Alamos … I mean, I’m not a conspiracy theorist. But what happened with that?” — Heather Vuchinich, a consultant who lost property in the fire and fled two other wildfires while living in California

Matt Martinez in the Sangre De Cristo Broadcasting Co. studio in Las Vegas, New Mexico. Although the fire didn’t reach the town, smoke damaged transmission equipment there.

“I think there’s always got to be consequences. Of course, I don’t think they’re ever going to stop prescribed burns, but I think you’ve got to pay attention. And if you would have asked anybody, prior to this thing happening, no one would have recommended you start a prescribed burn in the spring — late winter, early spring. I just wonder, what happens to the person actually responsible at the end of the day? I think the community would like to know.” — Matt Martinez, whose radio station’s programs were a reliable source of information for residents without power or internet access after the fire

Recovery — to the extent there is one — will take a lot longer than people say.

Hundreds of millions of dollars are finally flowing into these communities, but residents face years of rebuilding homes, flood-proofing properties and repairing roads. It will take decades for trees to cover the mountains again.

Talissa Ralph with her horse, Nova Vida, in the burn scar on her property in Sapello, New Mexico

“Even though people may say it’s nice to get the money, it’s also a burden. Because if you want to do this work on your land, you have to organize it and find the people and make the plan and oversee it. It’s a long project, at least five years or more of concentrated effort. … The whole thing makes me tired. I mean, I am doing better than a lot of people, but it’s just burnt trees all the time. Everything’s burnt.” — Talissa Ralph, who lost most of the trees on her 228-acre ranch

Cyn Palmer in her friend’s home in Albuquerque, New Mexico. Palmer said her spinal pain and pancreatic disease grew worse after she fled the fire and tried to protect her home from subsequent flooding. She stays with her friend when she has to see her specialists so she can make it to all of her appointments.

“All of this is now a 500-square-mile flood zone. FEMA can never restore my view, nor will it ever restore the impact to my physical and mental health. That is true for thousands of people. There are still many people living in RVs and trailers. … We have years of flooding ahead. Many will never fully recover; certainly this area will never be the same.” — Cyn Palmer, who was displaced for eight months after her home was damaged by smoke and flooding

Photo editing by Peter DiCampo. Design by Zisiga Mukulu.

by Becca Savransky, Idaho Statesman, and Asia Fields, ProPublica

This article was produced for ProPublica’s Local Reporting Network in partnership with the Idaho Statesman. Sign up for Dispatches to get stories like this one as soon as they are published.

For decades, school districts across Idaho have struggled to pass bonds to repair and replace their aging, crumbling buildings. A legislative proposal introduced Wednesday could change that by starting the process of lowering the vote threshold school districts need to pass a bond.

Idaho is one of only two states that require two-thirds of voters to support a bond for it to pass. Most states require either a majority or 60% of voters.

The resolution, introduced by Republican Rep. Rod Furniss, R-Rigby, would propose changing the Idaho Constitution to lower the threshold to 55% during years when statewide elections are held, such as presidential election years, when turnout is traditionally higher. The two-thirds threshold would remain in years with only local elections.

The resolution is intended to ease the requirements when more community members turn out to vote. Local elections often have low turnout while general elections have typically drawn 60% to 80% of registered voters, according to data from the Idaho secretary of state.

“What this does is this focuses on elections where we have higher participation rates. Hopefully, the idea is that we will know the will of the people from these votes,” Furniss told a legislative committee. “Fifty-five percent, that would increase our chances of funding these.”

Superintendents and school board members said the two-thirds threshold has been unachievable.

“It’s about time,” Mountain Home Superintendent James Gilbert told the Idaho Statesman and ProPublica. “It’s something that’s needed to be done for decades. That supermajority threshold is becoming virtually impossible to pass bonds on.”

The new resolution will need support from two-thirds of legislators in each chamber to place it on the general election ballot. It would then require approval from a majority of voters to change the state constitution.

The resolution is the second proposal to address the state’s school facilities funding crisis this legislative session, following a Statesman and ProPublica investigation that showed some students are learning in freezing classrooms, sometimes with leaking ceilings and damaged equipment after their districts failed to pass bonds.

This month, Idaho Republican leaders introduced a bill that would add $1.5 billion and redirect an additional $500 million over 10 years to help districts repair and replace their buildings. But some lawmakers and school district officials have raised concerns that the bill would not adequately address the needs of rural areas because it’s based on attendance, which favors larger urban districts.

That legislation followed a call from Gov. Brad Little during his State of the State address to make school facilities funding “priority No. 1” this legislative session. The House will soon vote on the proposal, House Bill 521, after a panel of lawmakers sent it to the floor last week.

Aside from distributing funds based on average daily attendance, the bill would also eliminate the August election as an option for school districts to run bonds and levies and lower the state’s income tax rate. Little celebrated the legislation as the largest investment in school facilities in state history.

Jason Knopp, an Idaho School Boards Association board member and Melba School District board chair, told the Statesman and ProPublica that the bill is a good first step but likely won’t be enough for districts like Melba to construct new schools without bonds. Melba would get about $3.1 million in a lump sum and additional money each year to help pay off its bonds and levies, according to estimates shared with the Statesman by the governor’s office on Feb. 20.

Superintendents have said this funding wouldn’t eliminate the need to pass bonds and levies, which can be big lifts for districts across the state.

Swan Valley School District Superintendent Michael Jacobson said he hopes to replace his school’s coal boiler, which requires constant maintenance and raises health concerns, with an electric boiler — a cost of nearly $1 million. If the funding bill passed as is, Swan Valley would receive about $200,000, according to the estimates.

He believes all districts should get a base amount, in addition to funds determined by attendance, to help level the playing field for rural districts, which make up a majority of Idaho’s school districts.

“The majority of the funding should not always go to the larger districts,” Jacobson said.

He said that he could see how lowering the threshold would be a win for other districts, but that it won’t make much of a difference in his community, given the lack of support for a bond.

Some superintendents have said they’ve given up on trying to pass bonds altogether. Others have run multiple bond elections but failed every time. Still others have come within a few votes of meeting the threshold.

Paired with a bill to lower the two-thirds threshold, the proposals could have a huge impact on school districts and communities, Knopp said. “That’s a great pairing coming together. We can lower the tax burden on the people who live in our school districts and also help make it easier for us to bond with less tax burden,” he said.

by Caleb Bedillion, The Marshall Project

This article was produced in partnership with the Northeast Mississippi Daily Journal, formerly a member of ProPublica’s Local Reporting Network, and The Marshall Project. Sign up for Dispatches to get stories like this one as soon as they are published.

The right to an attorney is fundamental to the U.S. justice system. Yet, in a small Mississippi court off the interstate between Jackson and Memphis, that right is tenuous.

The two judges in Yalobusha County Justice Court appointed lawyers for just 20% of the five dozen felony defendants who came before them in 2022, according to a review of court records; nationally, experts estimate that lawyers are appointed to at least 80% of felony defendants at some point in the legal process because they’re deemed poor. In this court, the way these two judges decide who gets a court-appointed attorney appears to violate state rules meant to protect defendants’ rights. A few defendants have even been forced to represent themselves in key hearings.

Despite the Sixth Amendment’s guarantee that everyone gets a lawyer even if they’re too poor to pay for one, most felony defendants in this court went without any representation at all before their cases were forwarded to a grand jury, according to a review of one full year of court files by the Northeast Mississippi Daily Journal, The Marshall Project and ProPublica. (Read more about how we analyzed the court’s appointment rate in our methodology.)

“That is a huge problem,” said André de Gruy, who leads a state office that handles death penalty cases and felony appeals but has no power over local public defense. “I believe almost every one of those people would like a lawyer and is unable to afford one.”

For decades, civil rights advocates and legal reformers have complained that Mississippi is among the worst states in the country in providing attorneys for poor criminal defendants. It’s one of a handful of states where public defense is managed and funded almost entirely by local governments, and the way they do so varies greatly from county to county. Defendants in some places see appointed lawyers quickly and remain represented thereafter; elsewhere, sometimes right over the county line, defendants can wait months just to see a lawyer or can go long periods without having one at all.

The Mississippi Supreme Court, which oversees how state courts operate, has issued several rules in recent years that were intended to drive improvements. But it is up to locally elected judges to carry out those mandates, and there’s no oversight to make sure they’re doing it right.

Much like Mississippi, Texas places primary responsibility for public defense on counties. A state commission in Texas investigates the counties with low appointment rates; a felony appointment rate below 50% would raise serious questions about a county’s compliance with state law, according to current and former officials there. In Mississippi, state officials don’t even know how often judges appoint attorneys.

When people are arrested on felonies in Yalobusha County, a rural area in north Mississippi with just 12,400 residents, many have initial hearings in the county’s Justice Court. Judges there primarily handle misdemeanors. But when a felony defendant appears in their court, it falls to Judge Trent Howell and Judge Janet Caulder to deliver on the Sixth Amendment’s promise.

Caulder handles many initial hearings, where she’s required by state rules to find out whether a defendant is too poor to afford an attorney and to appoint one if so. Although Caulder informs defendants of their right to an attorney, she said she doesn’t ask if they can afford one and appoints one only if they request it.

“I don’t question them. I don’t try to force indigency on them,” she said. (Neither she nor Howell would comment on their appointment rate.)

Caulder and Howell are supposed to operate by the same rules as judges in circuit court, who handle felony cases from indictment through trial. But that doesn’t appear to be what’s happening: 15 of the cases that Howell and Caulder handled in 2022 are now in circuit court; just four of those defendants were appointed attorneys in Justice Court, but 13 were provided with lawyers when their cases moved to circuit court.

I don’t question them. I don’t try to force indigency on them.

—Judge Janet Caulder

Explaining why he is sometimes reluctant to appoint an attorney, Howell told the news outlets that he has a “fiduciary duty” to spend taxpayers’ money wisely. He said he’s more likely to provide a lawyer if a defendant is in jail because a lawyer can seek a lower bond to get their client released.

On the other hand, Howell said, “If they’re arrested on a felony and they’ve made bond, I’m not too quick to pull the trigger on a public defender — particularly if they’ve made a high bond.” State rules don’t allow Howell to consider whether someone made bond when he decides if he will appoint an attorney, but he said that doing so was just “human nature.”

That’s what happened when Kayla Williams, a single mother with no stable job, came before Howell last summer on a charge of shooting and wounding her stepfather in a tussle. Williams, whose mental health issues include bipolar disorder, has been arrested three times in the past year or so after confrontations with others. In two hearings related to the shooting charge, Howell refused to appoint an attorney even though she said she couldn’t afford one, according to Williams, as well as a lawyer who observed one hearing and a reporter who observed another.

In an interview, Howell defended his decision, which he made without asking a single question about Williams’ finances: “She just didn’t strike me as an indigent person.”

“Can You Appoint Me a Lawyer? Because I Can’t Afford One.”

Kayla Williams asked repeatedly for a court-appointed lawyer in Yalobusha County Justice Court, but she didn’t get one. Since last summer, she has navigated the justice system alone in her fight against a charge that carries a possible 20-year prison sentence. (Rory Doyle for ProPublica)

Though Mississippi doesn’t have any guidelines for how judges should decide who is poor enough to get a court-appointed lawyer, a half-dozen legal experts who reviewed the facts of Williams’ case said she appears to qualify and that her constitutional rights have been violated.

Problems getting a court-appointed lawyer began soon after she was arrested.

On June 12, Williams’ elderly stepfather, whose name is Lawyer Crowder, was pulled over by a Yalobusha County sheriff’s deputy because he was weaving slowly down a rural road. Crowder, whose leg was bleeding, told the deputy that his stepdaughter had shot him. He had the pistol she used with him.

Around the same time, Williams called 911 and said she had shot Crowder after he hit her, according to a dispatch log. Deputies arrested her and charged her with aggravated assault against a family member, a felony with a possible prison sentence of 20 years. (While Crowder told the news outlets that Williams started the fight and that he believes she meant to shoot him, he said: “I don’t want her put away. I want her to get some help.”)

At Williams’ first court hearing a couple of days later, Caulder told her she had a right to a court-appointed lawyer, but the judge didn’t ask Williams if she could hire one herself. The state’s rules required Caulder to make a decision that day: “The determination of the right to appointed counsel, and the appointment of such counsel, is to be made no later than at the indigent defendant’s first appearance before a judge.”

Caulder did gather the facts of Williams’ finances to set conditions for her release from jail — the same sort of information that judges use when deciding whether to appoint a lawyer. According to court records, the judge knew the 22-year-old mother had no job at the time and no place of her own to live.

What I witnessed in the courthouse in Water Valley that day was not a judge carefully exploring the ability of a defendant to afford a lawyer. … What I saw was an immediate rejection of her request for assistance without any inquiry whatsoever into her ability to pay.

—Civil rights attorney Cliff Johnson

That should have been enough to prompt Caulder to appoint a lawyer, said de Gruy, the head of the state public defense office. Caulder, however, said she believes she complied with court rules because she told Williams of her rights. She always does that, she said, and she’s always willing to consider a request for a lawyer.

Caulder shouldn’t force defendants to ask for a lawyer, said William Waller, a retired chief justice of the Mississippi Supreme Court who helped write the state’s court rules. That “is absolutely not right,” he said, because many defendants don’t know how or when to ask. “The judge makes the inquiry” to learn whether a defendant can afford an attorney, he said.

Williams’ friends and family paid a bail bond company to post a $7,500 bond to get her out of jail. Her next opportunity to get a lawyer came a month later, when she walked into Howell’s courtroom in Water Valley for a hearing.

Cliff Johnson, a civil rights attorney and law professor, happened to be in the courtroom that July day doing pro bono work for an animal shelter. Williams asked for a lawyer more than once, Johnson said. Howell said he wasn’t going to appoint one at that time.

“What I witnessed in the courthouse in Water Valley that day was not a judge carefully exploring the ability of a defendant to afford a lawyer,” Johnson said. “What I saw was an immediate rejection of her request for assistance without any inquiry whatsoever into her ability to pay.”

In an interview, Howell defended his decision in that hearing and a subsequent one: “I think that what I did at this particular point for this lady was within my discretion and proper.” He suggested that hearings in his court aren’t as critical to the outcome of a case as those in circuit court. However, the state’s rules say poor defendants must have a lawyer throughout the process.

Howell did tell Williams she could ask for a preliminary hearing, an optional hearing that defendants can request to force a prosecutor to show that there was probable cause for an arrest.

The courthouse in Water Valley, Mississippi (Rory Doyle for ProPublica)

That’s how Williams found herself the following month in a crowded conference room that served as a courtroom, sitting at a table with the deputy who arrested her and the prosecutor handling her case. The prosecutor asked if she had an attorney.

“No, because the judge has not provided me with one,” Williams replied. Howell didn’t respond. After a brief exchange, the judge said he was ready to proceed with the hearing.

His decision to hold that hearing for a defendant who didn’t have a lawyer was particularly egregious, according to law professors, civil rights attorneys and a legal consultant. The U.S. Supreme Court requires that appointed counsel be present with a poor defendant at key hearings, called critical stages, at which the defendant’s rights could be impaired. Experts agree that a preliminary hearing in Mississippi is considered a critical stage.

“That is clearly a violation” of her rights, said David Carroll, who has studied Mississippi’s defense system as executive director of the Sixth Amendment Center, a Boston-based nonprofit research center.

Without an attorney, Williams handled the hearing herself. She stammered as she cross-examined the deputy, who acknowledged that the case hinged largely on the stepfather’s account. “I’m nervous,” she said.

After the deputy testified, Howell told Williams there was no need for her to testify. Anything she said could be used against her later, he said, and he was prepared to rule that the case could move forward.

“I want to tell my side of the story,” Williams said.

“You’re going to testify over my recommendation,” the judge responded.

Williams did testify, stressing her belief that the gun was fired by accident. Testifying was a risky move, one that a defense lawyer likely would have prevented, said Jonathan Rapping, who runs the national nonprofit public defender training organization Gideon’s Promise. Williams’ hearing, he said, was “a textbook example of why you need a lawyer.”

After Howell ordered that Williams’ case could proceed to a grand jury, she made a direct appeal: “Can you appoint me a lawyer? Because I can’t afford one.”

Howell said that if she were eventually indicted, a judge in circuit court would decide whether she would be eligible for appointed counsel. But that might not happen, the judge said, until the next grand jury was convened in December, four months away.

Justice Court Judge Trent Howell signed this order forwarding Williams’ case for consideration by a grand jury. A handwritten note on the order says the court determined that Williams wasn’t indigent, but Howell didn’t ask Williams any questions to learn why she said she couldn’t afford an attorney. (Obtained by the Northeast Mississippi Daily Journal, The Marshall Project and ProPublica. Highlighted by ProPublica.) The Rules Are Mandatory, but No One Enforces Them

Months later, as Williams waited for an update on that case, she had a different experience in another county. She had been arrested on two felony counts of arson after she acknowledged lighting two small fires in a homeless shelter she was staying in, according to a police report. Within 48 hours, she had a lawyer in Tupelo Municipal Court, which, unlike Yalobusha County Justice Court, employs a full-time public defender.

She had seen for herself what criminal justice reformers have long argued is a key problem with Mississippi’s locally controlled public defense system: While some local courts swiftly deliver lawyers to poor criminal defendants, others delay and deny representation for months without any oversight by the state. Multiple commissions and task forces have tried to address shortcomings in the public defense system over the years, but the Legislature hasn’t acted. So the state Supreme Court has wielded its authority over the courts below it.

Though its rules are mandatory, Mississippi’s Supreme Court relies on judges across the state to implement them. Those local judges don’t have a good track record, the Daily Journal, The Marshall Project and ProPublica have found.

In 2017, the Supreme Court put all Mississippi courts under the same rules. Among them: Judges in each court would have to write down how they provide attorneys for poor defendants. The Supreme Court would review those policies and approve them.

Six years later, the first of the state’s 23 circuit courts complied. Since then, just two more have filed plans.

A similar lack of compliance emerged last summer, when the court took action to address poor defendants being left without legal representation between their initial court hearings and an indictment, a period that often lasts months and sometimes years.

We don’t hear from many places other than Mississippi of judges simply ignoring or deferring the question of whether the right to counsel applies.

—Lisa M. Wayne, executive director of the National Association of Criminal Defense Lawyers

A revised rule aims to eliminate that gap in representation — which critics have called the “dead zone” — by preventing a lawyer from leaving a case unless another has already taken over. On the eve of last summer’s deadline to comply, many local officials told the news outlets that they were unaware of the rule or contended they didn’t need to change their current practice.

But it’s not the Supreme Court’s role to go out and make sure judges follow these rules, a justice told legislators last fall. Although an individual defendant can petition to have their case dismissed if they have been denied a lawyer, the only way, outside of a lawsuit, to hold judges accountable for their actions is to file a complaint with a state judicial commission. The commission hasn’t publicly sanctioned any judges for denial of counsel in at least a decade.

In 2014, Mississippi’s Scott County was sued for practices similar to those in Yalobusha’s Justice Court. The county settled the suit in 2017 and, without admitting fault, agreed to hire a chief public defender and ensure that when people were arrested on a felony charge, they were provided with the paperwork to request a lawyer.

“We don’t hear from many places other than Mississippi of judges simply ignoring or deferring the question of whether the right to counsel applies,” said Lisa M. Wayne, executive director of the National Association of Criminal Defense Lawyers.

Johnson, the civil rights law professor, was among those who argued for the Supreme Court’s recent move to address the dead zone. He has argued that there’s important defense work to be done as defendants wait to be indicted, a view that puts him at odds with many judges and lawyers in Mississippi. The Supreme Court’s rule change went into effect in July; about a week later, he saw Howell deny Williams’ requests for an attorney.

“My fear is that this happens far more often than we know,” Johnson said. “I was reminded quickly that change comes hard in Mississippi.”

Howell, however, said he wants to go back to what he called “the old way,” to a time when the Supreme Court hadn’t spelled out so many procedural steps to follow before an indictment.

His view on the change that Johnson argued for, meant to ensure that a poor defendant always has a lawyer from arrest to trial? “Hopefully,” he said, “the Supreme Court will come down and modify that rule.”

Sometimes I get overwhelmed, but most of the time I’m just numb. … I’m tired. I’m only 22, but I feel like I’m 55.

—Kayla Williams

Williams hasn’t gotten any updates on the case involving her stepfather since she saw Howell last summer. After repeatedly calling Yalobusha County officials, she recently learned that she hadn’t been indicted by the December grand jury there. It’s unclear when, or even if, she will be. Prosecutors in Mississippi face no deadline to seek an indictment, and the grand jury in that part of Yalobusha County typically meets three times a year. By the time the most recent grand jury met this month, she was in jail on the latest charges and couldn’t call anyone to check on last summer’s case.

“Sometimes I get overwhelmed, but most of the time I’m just numb,” Williams said. ”I’m tired. I’m only 22, but I feel like I’m 55.” If she had an attorney, Williams said, “I would understand more and have more trust” in the legal process.

But after she appeared in Tupelo Municipal Court on the arson charges, she said, “I actually had a lawyer this time.” In all the months she had been speaking to the news outlets, it was the first time she felt that the court system had worked the way she thought it was supposed to. In an interview from jail, she said that the public defender had explained what would happen in court and argued for a lower bond, which was eventually set at $30,000. “He was really informative,” she said, “and made things seem a little bit better and like I wasn’t by myself.”

How We Reported This Story

The state of Mississippi does not collect data on how often judges provide an attorney to criminal defendants who are too poor to afford their own. Many counties don’t know that information either, even though each controls its own public defense system.

A task force that met from 2015 to 2018 found that it could not fully evaluate public defense in the state without knowing how often attorneys were appointed to indigent defendants. State officials surveyed circuit clerks, asking them to estimate their appointment rates. Circuit court clerks in 53 of 82 counties responded; the vast majority, including Yalobusha’s, estimated appointment rates of 75% or more in circuit court.

However, people arrested on felony charges make their first court appearance in lower courts, where judges are required to evaluate their ability to pay for an attorney and appoint one if needed. These courts handle only hearings that precede an indictment, after which cases are transferred to circuit court. In Yalobusha County, people arrested for a felony can have a first appearance in Water Valley Municipal Court or the county Justice Court.

To understand how frequently judges in Yalobusha County’s Justice Court appointed lawyers for defendants, a reporter traveled to the court clerk’s office and pulled the files for every felony case that was opened in 2022. We chose cases from 2022 because it was the most recent full calendar year and every case had had at least one opportunity to be presented to a grand jury for a possible indictment. We also reviewed files in another clerk’s office and billing records for attorneys appointed in Justice Court. We found 63 cases in which court records indicated that defendants appeared before a judge in Justice Court.

For each case, a reporter logged various facts, including the defendant’s name, the charge, hearing dates, the judge or judges that heard the case, and whether the file included an indigency affidavit, a judge’s order appointing an attorney or a letter from a lawyer stating that they had been retained in the case.

We counted the number of defendants who were provided counsel in Justice Court. (Defendants who appeared in court multiple times were counted once, even if they appeared on unrelated charges.) This number was used to calculate an appointment rate for 2022: 20%. In the majority of cases — 61% — the defendant had no attorney at all. (In a couple of cases, they waived their right to an attorney.)

In a few cases, notes in case files say that defendants told a judge they had hired an attorney or intended to, but there are no records showing they did so. We counted those defendants as privately represented, based on the case notes.

We excluded two cases from our analysis because we could not determine whether the lawyer listed had been appointed or hired.

Our reporter also checked Mississippi’s online court database to see how many of the 2022 cases had been moved to circuit court and how many of those defendants had been appointed lawyers there.

by Mark Olalde, ProPublica, and Nick Bowlin, Capital & Main

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

In the 165 years since the first American oil well struck black gold, the industry has punched millions of holes in the earth, seeking profits gushing from the ground. Now, those wells are running dry, and a generational bill is coming due.

Until wells are properly plugged, many leak oil and brine onto farmland and into waterways and emit toxic and explosive gasses, rendering redevelopment impossible. A noxious lake inundates West Texas ranchland, oil bubbles into a downtown Los Angeles apartment building and gas seeps into the yards of suburban Ohio homes.

But the impact is felt everywhere, as many belch methane, the second-largest contributor to climate change, into the atmosphere.

There are more than 2 million unplugged oil and gas wells that will need to be cleaned up, and the current production boom and windfall profits for industry giants have obscured the bill’s imminent arrival. More than 90% of the country’s unplugged wells either produce little oil and gas or are already dormant.

By law, companies are responsible for plugging and cleaning up wells. Oil drillers set aside funds called bonds, similar to the security deposit on a rental property, that are refunded once they decommission their wells or, if they walk away without doing that work, are taken by the government to cover the cost.

But an analysis by ProPublica and Capital & Main has found that the money set aside for this cleanup work in the 15 states accounting for nearly all the nation’s oil and gas production covers less than 2% of the projected cost. That shortfall puts taxpayers at risk of picking up the rest of the massive tab to avoid the environmental, economic and public health consequences of aging oil fields.

Are you a journalist, academic or someone else interested in localizing, analyzing or otherwise working with the bonding and cleanup cost data referenced in this story? Reach out directly at mark.olalde@propublica.org to discuss the data or to request access to it.

The estimated cost to plug and remediate those wells if cleanup is left to the government is $151.3 billion, according to the states’ own data. But the actual price tag will almost certainly be higher — perhaps tens of billions of dollars more — because some states don’t fully account for the cost of cleaning up pollution. In addition, regulators have yet to locate many wells whose owners have already walked away without plugging them, known as orphan wells, which states predict will number at least in the hundreds of thousands.

“The data presents an urgent call to action for state regulators and the Department of the Interior to swiftly and effectively update bond amounts,” said Shannon Anderson, who tracks the oil industry’s cleanup as organizing director of the Powder River Basin Resource Council, a nonprofit that advocates for Wyoming communities. Anderson and nine other experts, including petroleum engineers and financial analysts, reviewed ProPublica and Capital & Main’s findings, which were built using records from 30 state and federal agencies.

“We have allowed companies intentionally to do this,” said Megan Milliken Biven, who reviewed the data and is a former program analyst for the Bureau of Ocean Energy Management, a federal regulator of offshore oil rigs, and founder of True Transition, a nonprofit that advocates for oil field workers. “It is the inevitable consequence of an entire regulatory program that is more red carpet than red tape.”

Sources: State oil regulators and the Department of the Interior, via public records requests by ProPublica and Capital & Main; Enverus.

Regulatory agencies in several states maintain that they have adequate tools to protect taxpayers, such as the authority to require companies to post larger bonds as their wells stop producing. Other states are working to reform their bonding systems. Industry representatives, meanwhile, say they have done their part by paying fees on oil production that help fund states’ well-plugging efforts.

“Our industry is taking action every day to address the permanent closure of historic oil and natural gas wells and the remediation of historic well sites in accordance with applicable federal and state laws,” Holly Hopkins, a vice president of the American Petroleum Institute, the industry’s major trade group, said in a statement.

A graveyard of rusting wells rising from once-picturesque sand dunes near Artesia, New Mexico, tells a more complicated story.

Around the corroding skeletons of pump jacks, the ground is stained black from spills. Leaking hydrogen sulfide, which reeks of rotten eggs, has turned the air toxic, making each breath burn. At the base of one salt-caked well, a sign indicates who is responsible for the mess. Barely legible beneath splattered oil, it reads “Remnant Oil Operating.”

The story of Remnant is the story of the American oil industry.

The industry’s household names — Chevron, ExxonMobil and others — often reap the biggest profits from any given oil field. As the booms fade and production falls, wells are sold to a string of ever-smaller companies, many of which let the infrastructure fall into disrepair while violations and leaks skyrocket. The number of idled wells soars too, as companies warehouse them to avoid costly cleanup. By this point, regulators’ hands are tied because the bonds states demand to use as leverage are so small. Seeing little incentive to plug wells and get their tiny bonds back, companies slip into bankruptcy court, where executives are protected from their environmental liabilities. When the dust settles, the government is on the hook for the now-orphaned wells.

The practice is so tried-and-true that researchers and activists call it “the playbook.”

As the company’s name implies, Remnant gathered the industry’s dregs into a portfolio of several hundred wells. Drilled decades ago by larger companies, their most productive days were behind them. When Remnant arrived in 2015, it briefly boosted production, but regulatory violations, bad bets and the oil fields’ age caught up with the company. Within four years, Remnant filed for bankruptcy protection, and its leadership shuffled assets and liabilities between companies the executives managed.

What’s left of Remnant is 401 wells scattered across the New Mexico countryside. While a few are still pumping, more are idle and potentially already orphaned, joining thousands of other wells that are sitting unplugged and in need of cleanup across the wider region. Regulators here in the Permian Basin, the world’s most productive oil field, must contend with Remnant and other undercapitalized companies like it that could add even more wells to the list of orphans.

Sources: New Mexico Oil Conservation Division; Railroad Commission of Texas. (Jason Kao and Lucas Waldron/ProPublica)

Remnant representatives did not respond to ProPublica and Capital & Main’s requests for comment.

Over their lifespans, the wells that remain in the hands of Remnant and a related company generated roughly $2 billion in revenue, when adjusted for inflation, enough to cover the cost of their cleanup many times over. This is according to estimates produced from state production data by ProPublica, Capital & Main and Texas-based petroleum reservoir engineer Dwayne Purvis.

The New Mexico State Land Office sent letters in 2023 demanding that cleanup begin. Remnant’s executives have yet to comply.

Seeking Fortunes

As wildcatters scoured Texas for oil in the 1920s, one hopeful investor christened their well in honor of Saint Rita of Cascia — the patron saint of impossible causes — asking for a miracle. The gusher that followed ignited a drilling frenzy in the Permian Basin, from West Texas to southeastern New Mexico.

By the late 1940s, the Square Lake Pool had come alive among New Mexico’s sand dunes. Anadarko Production Company — now part of the $50 billion Oxy Petroleum — took over the oil field in the 1960s and increased production. To keep the oil and gas flowing, Anadarko turned to unconventional methods: fracturing underground rock, injecting wells with gelled water and frac sand and waterflooding. The chemical treatments continued into the 1980s, but production steadily declined as the wells aged and underground oil reservoirs were depleted.

In 1995, Xeric Oil & Gas Corp. acquired much of the field. Two years later, Xeric transferred the wells to GP II Energy Inc. In the two decades that followed, the wells ping-ponged to CBS Operating Corp., Boaz Energy LLC, Memorial Production Operating LLC, Marker Oil and finally, in 2017, to Remnant.

Remnant was the brainchild of Everett Willard Gray II, Robert Stitzel and Marquis Reed Gilmore Jr., oilmen out of Midland, Texas, the heart of the Permian. They set up shop north of downtown, their office surrounded by those of other oil companies, a politician and banks in a six-story office building rising above a parking lot full of white pickup trucks.

Initial investments in the wells succeeded in reversing the declining production and squeezed out tens of millions of dollars of additional revenue, estimates based on state data show.

But Gray, Stitzel and Gilmore — who did not respond to requests for comment — reduced the workforce that serviced the wells and limited repairs to cut costs. Regulators noted 146 infractions in the years Remnant and a related company operated the wells, according to New Mexico Oil Conservation Division data. Among them: leaks and spills, degraded wells, a lack of infrastructure to contain spills and “contaminated material on location.” The records show Remnant only brought two of the infractions into compliance, but it continued pumping.

Peer-reviewed studies have found that wells emit methane, a greenhouse gas that in the short term has 85 times the warming impact of carbon dioxide, at a higher rate as they move down the oil industry food chain, from majors to thinly capitalized operators like Remnant.

Transferring wells between companies has historically been approved automatically in New Mexico, as long as the company receiving the wells is in compliance with inactive-well rules and has a bond, according to Oil Conservation Division acting Director Dylan Fuge.

As oil fields age and are passed between companies, it’s also common to let wells stand inactive temporarily to wait out a price dip or complete maintenance. But idling is often a prelude to a well being orphaned, and after a few months of inactivity, the chance that a well never produces again rises significantly.

Across the country, more wells are idle than producing, according to an analysis of data from energy software company Enverus.

Despite a New Mexico law that requires companies to plug, restart or get approval to temporarily idle wells that haven’t produced for 15 months, ProPublica and Capital & Main identified more than 3,100 oil and gas wells in the state — 4% of the state’s portfolio — that sit unproductive and out of compliance, a step away from being orphaned.

A bill introduced in this year’s legislative session — written by the Oil Conservation Division, the industry and certain environmental groups — would’ve reformed New Mexico’s Oil and Gas Act, giving the agency more authority to intervene to stop transfers that pose a risk of leaving wells orphaned. The bill died on the floor of the state’s House of Representatives.

Any reforms would likely come too late for the oil fields in Remnant’s hands, where numerous wells are already idle.

Hesitant to Regulate

On a brisk November day, ProPublica and Capital & Main reporters examined a Remnant well that, like the company, was listed in state records as inactive. Oil coated the wellhead, rust crept across the pump jack and a faded sign bore Remnant’s coat of arms — a bird of prey with outstretched wings perched on a shield.

Suddenly, the well creaked to life, producing for a dead company. A haze appeared. Methane, typically invisible to the naked eye, leaked in such a high concentration that the air shimmered. A handheld gas detector aimed at the wellhead screeched a warning — the amount of escaping methane had made the air explosive.

That day’s production and emissions never appeared in state records.

Methane leaks from a Remnant well listed as inactive in state records. The gas is invisible to the naked eye but detectable as a black plume using specialized infrared camera technology. (FLIR footage courtesy of Charlie Barrett/Earthworks)

Watch video ➜

ProPublica and Capital & Main reporters visited dozens of Remnant wells and tank batteries — facilities used for oil storage and early stages of processing — scattered across this rural stretch of New Mexico. Multiple sites emitted explosive levels of methane, with one leak clocked at 10 times the concentration at which the gas can explode.

Several wells belched sour hydrogen sulfide at concentrations that maxed out the gas detector, registering levels three times as high as what is “immediately dangerous to life or health,” according to the National Institute for Occupational Safety and Health.

Oil Conservation Division inspectors hadn’t visited some of the wells since 2017, according to agency records.

Two hundred fifty miles northwest of these oil fields, New Mexico’s Democrat-controlled government in Santa Fe has for years made big promises on climate change and the environment. But there has been little action to regulate the industry in ways that could hit the bottom line of the state’s petroleum companies and oilmen like Remnant’s Gray, Stitzel and Gilmore. The taxes and royalties the industry pays, which the state has tied to public education funding, typically account for more than a quarter of the state’s general fund, earning it a nickname — “golden goose.”

This close relationship to the industry cuts across parties. When Republicans were in power, the head of the New Mexico Environment Department left to run the New Mexico Oil and Gas Association. Now, the state’s Democratic leaders take major fossil fuel donations, publicly assert that they will not target the industry with aggressive regulations, and block reform.

State Rep. Joanne Ferrary, a Las Cruces Democrat who has worked on oil legislation, had a simple explanation for what dooms these efforts: money. She pointed to the industry’s spending on lobbying as well as the threat of losing taxes and royalties. “We do get a lot of money from them,” she said, “but those are our resources and they’re not doing us any favors.”

Consider the state’s Office of Natural Resources Trustee, which pursues polluters for financial settlements to clean up the environment. The agency has secured millions of dollars from mines, an Army munitions depot and a wood treatment facility. But it completed just one action for petroleum pollution in decades. Even then, the office only had jurisdiction to pursue a small settlement because a tanker truck flipped on an icy road, spilling refined gasoline and diesel into the Cimarron River.

Legislators attempted to expand the office’s authority in 2009, 2010, 2011, 2013 and again last year. All those efforts failed.

Ferrary, who sponsored the 2023 bill to grant the trustee more authority over petroleum and certain cancer-causing substances, said the oil and gas industry has “such strong lobbying that we have to negotiate whatever we are trying to do. It always seems to get negotiated down.”

In a recent four-year period, the state’s oil and gas industry spent $11.5 million to influence policy, in addition to employing dozens of lobbyists, according to research from two government accountability nonprofits.

“Lawmakers and regulators appropriately balance the need to hold industry accountable while also ensuring oil and gas operations remain viable,” Frederick Bermudez, the vice president of communications for the New Mexico Oil and Gas Association, said in a statement. He added that Remnant is not a member of the trade group and that “bad actors in the industry should be held accountable.”

Regulators argue they’re underfunded and understaffed, while environmental activists point out agencies are sometimes tasked with simultaneously overseeing and advancing the industry. New Mexico records, for example, show that the Oil Conservation Division inspects roughly half the state’s wells annually, but many go years without a visit. Meanwhile, it quickly greenlights requests to drill new wells, generally granting approval for more than 90% of permits within 10 days.

The state does even worse at preparing for the industry’s decline. The division secured about 7% of the tens of millions of dollars of additional bonds it requested from companies in violation of idle well rules, according to a ProPublica and Capital & Main analysis of the agency’s data. (The division said some companies no longer need to hand over the requested bonds because they have since left their wells as orphans for the state to plug. The state has already labeled more than 1,700 wells as orphans.)

The Oil Conservation Division has “limited bandwidth” and has to triage enforcement, Fuge, its acting director, said, adding that a mix of enforcement actions and business decisions lead companies to plug many of their own wells. “We don’t prioritize inactive well actions when the chute’s too deep because we want to devote the resources that we have to other enforcement initiatives.”

Oil wells cover the landscape near Loco Hills, New Mexico, which sits in the Permian Basin, a major oil- and gas-producing area in West Texas and southeastern New Mexico. (Jim WEST/REPORT DIGITAL-REA/Redux) “Ill-Prepared for This Last Phase of Life”

By the time regulators took notice of Remnant’s myriad violations and idle wells, it was too late.

Core to oil regulators’ power are bonds, the financial assurances oil companies must set aside to guarantee that wells are plugged. Proper cleanup is expensive, so when bonding levels are low, companies have no incentive to finish cleanup and retrieve their bonds.

To decommission a typical orphan well in New Mexico costs the state about $167,000, according to documents the Oil Conservation Division submitted to the U.S. Department of the Interior. That translates to an $11.8 billion shortfall between the potential future cleanup costs and bonds that companies set aside with the agency, ProPublica and Capital & Main found.

“The state of New Mexico is short,” Fuge said. “We don’t hold sufficient bonding to cover likely plugging liabilities.”

Fuge suggested the shortfall might be smaller, deferring to an environmental group’s lower projection. Elsewhere in state government, the State Land Office in 2022 estimated the gap between bonds and cleanup costs was $8.1 billion.

Based on the per-well cleanup costs Fuge’s agency submitted to the federal government, the wells belonging to Remnant and a related company could cost the state $67 million if they are orphaned. The companies have only set aside about $1.5 million in bonds across three state and federal agencies.

Under current New Mexico rules, companies only need to put up a single bond worth a maximum of $250,000 — no matter how many wells they have — with the Oil Conservation Division. The failed reform bill would’ve increased that cap to $10 million. The division can request additional bonds to cover the increased risk from idle wells, but when it asked Remnant and a related company for about $3 million, the operators put up less than a tenth of that and kept pumping oil.

Weak bonding rules and an unwillingness to take on the industry have created similar shortfalls across the nation.

The Pennsylvania General Assembly in the 1990s, for example, forced the state’s oil regulators to hand back money that oil companies had set aside to plug wells drilled prior to 1985, which numbered in the tens of thousands of wells.

Oklahoma allows oil companies that prove they’re worth at least $50,000 — about the price of one of the ubiquitous pickup trucks cruising the oil fields — to set aside no money to plug their wells.

And Kansas gives companies, no matter how many wells they own, the option of paying a flat $100 annual fee instead of setting aside a bond, as long as they have not committed recent infractions. Seven out of eight companies in the state take this route, leaving an average of less than $13 in bonds for each of the state’s 150,000 unplugged wells. The state’s estimated cleanup costs — which experts said may be low — would mean the state faces about a $1 billion shortfall between the bonds and plugging costs.

“Regulations that may have worked well enough in the past have left the public and the industry ill-prepared for this last phase of life for millions of old wells,” Purvis, the petroleum reservoir engineer, said. “Left unchanged, current regulations and practices will continue to accrue liabilities that will ultimately fall on taxpayers.”

All told, oil drillers have set aside only $2.7 billion in bonds with the 15 states that account for nearly all the country’s oil and gas production and $204 million with the Bureau of Land Management, the main federal oil regulator. The expected cost to plug and clean up wells in those states is $151.3 billion.

ProPublica and Capital & Main obtained and analyzed more than a thousand pages of states’ applications for funding to plug orphan wells as part of the Biden administration’s Infrastructure Investment and Jobs Act. The documents reveal for the first time states’ own estimates of the cleanup costs in a way that allows states to be compared.

“You can give us probably the entire infrastructure act funding — $4.7 billion — and we'd probably spend that in Pennsylvania,” Kurt Klapkowski, head of the commonwealth’s Office of Oil and Gas Management, told a national meeting of regulators in October.

Some states acknowledged that accumulated costs from unplugged wells are high but said they could be mitigated by additional money in the states’ orphan well funds — which often contain several million dollars and were not included in this study — and by tools meant to ensure companies, rather than taxpayers, plug the wells. For example, Wyoming significantly increases the bonds required of operators when wells go idle.

“Wyoming is fully bonded to be protective of the wells” under state oversight, Tom Kropatsch, oil and gas supervisor of the Wyoming Oil and Gas Conservation Commission, said in an email, pointing to the fact that most wells that have been plugged in Wyoming were plugged by the industry, not the state. “The bonds we hold are adjusted on an ongoing basis as our agency conducts an annual bond review of each operator.”

North Dakota regulators, with the luxury of a still highly profitable industry, have resources to more rigorously police oil. Lynn Helms, director of the North Dakota Department of Mineral Resources, said this includes enough inspectors to observe well plugging, determine whether idle wells require additional bonding and scrutinize proposed well transfers to smaller operators, which are “the biggest risk.”

Helms said the state aims to cover as much as 10% of future plugging costs through bonds and orphan well funds, although his department is still working to reach that level.

Both North Dakota and Wyoming hold more bonds and face lower impending liability than New Mexico.

“When the bottom goes out of this oil and gas production economy, who’s going to be left holding that bag?” New Mexico Commissioner of Public Lands Stephanie Garcia Richard asked.

Wind turbines have sprung up around oil wells near Odessa, Texas. (Lalo de Almeida/Folhapress/Panos/Redux) “I Got Big-Time Screwed Over”

In July 2019, less than four years after Gray, Stitzel and Gilmore began buying up wells, Remnant was in bad shape. Its wells were deteriorating and production was declining. The owners had made a costly gamble on an oil sale and the company’s bank demanded payment on a debt, according to court testimony from Gray.

So Remnant employed a tactic that has saved the oil industry billions — its owners filed for Chapter 11 bankruptcy protection with a court in Texas.

The Bankruptcy Code is meant to protect jobs, creditors and the economy by allowing companies to stabilize during rough patches. But bankruptcy court is a key step in the industry’s playbook, as it has become an oil field escape hatch, effectively allowing companies with aging wells to sell off valuable assets while orphaning wells in need of immediate cleanup. Companies can also stop the clock on many enforcement actions.

Between 2015 and 2021, 256 oil and gas producers entered bankruptcy protection across the country, carrying with them about $175 billion in debt, according to Haynes and Boone, a law firm that produced the most comprehensive research on oil field bankruptcies. (Haynes and Boone is representing ProPublica in several Texas lawsuits.)

Court records show the bankrupt Remnant companies owed millions of dollars to hundreds of creditors — oil field service companies, the New Mexico Taxation and Revenue Department, counties, banks, trucking companies and a local air conditioning and heating company.

But in the year leading up to the bankruptcies, court filings show, Remnant paid hundreds of thousands of dollars in consulting fees to companies belonging to at least two of the men who ran the company and cut numerous paychecks to a daughter, son, cousin and daughter-in-law of various executives.

In April 2020, unsecured creditors who were owed millions of dollars had the case converted to Chapter 7, meaning a trustee would take over, liquidate the company’s assets and pay back creditors where possible.

Debts relating to cleaning up the environment or repaying labor “get pretty low priority” in bankruptcy cases, explained Josh Macey, a law professor at the University of Chicago who studies bankruptcy and reviewed ProPublica and Capital & Main’s findings. To Macey, one solution to unfavorable bankruptcy rules is bonds, as they’re protected even in bankruptcy.

“Bonding requirements have not proven to be sufficient,” he said, “but if they were, it would make bankruptcy irrelevant.”

Arturo Carrasco was one of Remnant’s unsecured creditors, meaning a long list of debts would have to be settled before he saw any money. Carrasco, now retired, owned Art’s Hot Oil Services, an oil field maintenance company with a handful of drivers and trucks out of Lovington, New Mexico. By the time Remnant hired Carrasco’s company to work on its wells, most were “already depleted,” he said.

Remnant only paid him a little at a time and never the full amount it owed, Carrasco said.

Carrasco filed claims for more than $165,000 in the bankruptcy, according to court records, and that didn’t include another $50,000 in unpaid expenses like fuel, he said. Concerned his company might go under, Carrasco worked “double time” to make up for the lost income. With no expectation of recovering money via the bankruptcy, he briefly fantasized about throwing a chain around Remnant’s pump jacks and pulling them down.

“I got big-time screwed over,” he said.

Graveyards of Wells

Three months after the judge ordered that Remnant liquidate, a buyer called Acacia Resources LLC wired $402,000 to the trustee, completing the purchase of Remnant’s assets.

The new company was run by familiar names — Stitzel and Gilmore, Remnant’s former chief operating officer and president, state records show. Business filings and his LinkedIn profile suggest Gray left the venture to launch a helium and natural gas company.

“All they did was file bankruptcy. Then they went to the bank and bought it at a cheaper price, and they’re still producing,” Carrasco said. “How can that be allowed?”

Fuge, the New Mexico oil regulator, said the companies are the “subject of prime enforcement attention” but did not comment further. And a Bureau of Land Management spokesperson said Remnant had no outstanding violations and the agency was not preparing to forfeit the company’s bonds.

The details of Acacia’s operations are murky. The on-the-ground situation doesn’t always match New Mexico’s data, while state records don’t align with federal records.

But Remnant’s business practices are similar to those of any number of undercapitalized drillers holding portfolios of old wells. So the State Land Office began a campaign to bring such operators into compliance to protect the state from shouldering the burden of even more orphan wells.

Buried amid pages of infractions in Remnant’s files, agency staff noted that satellite imagery appeared to show a spill at a Remnant well in the Drickey Queen Sand Unit. In November, the agency wrote to Gray, Stitzel and others, demanding they begin plugging wells in the field.

Jaclyn McLean, an attorney representing Acacia, responded with a proposal — Acacia would plug a few wells per year and pay back some money it owed for pumping oil on expired leases if the state would renew those leases and reduce the amount the company owed. With Gilmore, who was a manager of both Remnant and Acacia, copied on the letter, McLean blamed prior management’s “severe inaction” and promised that “the new management team seeks to maintain professionalism, integrity, and authenticity.” (McLean did not respond to a request for comment.)

“Tell your client to get serious,” the agency responded.

Still unplugged, Remnant’s wells in the Drickey Queen Sand Unit stood eerily silent during a recent site visit, the bellowing and bleating of cattle the only sound as they grazed among the apparent orphans. At one of the pump jacks, which had not drawn oil in more than eight years, pieces of metal had corroded and fallen off. Lines used for collecting oil in preparation for sale lay in the dirt. They connected to nothing.

Methodology

To investigate what leads to oil and gas wells being orphaned, ProPublica and Capital & Main filed more than 55 public records requests with state and federal agencies and toured oil fields in New Mexico, Texas and California. We interviewed dozens of petroleum engineers, researchers, community members and government officials, including the leadership of oil agencies in Louisiana, North Dakota, Pennsylvania and elsewhere.

To determine the magnitude of the shortfall between cleanup costs and bonds, we needed to answer several questions: how many wells are unplugged, how much money have companies set aside in bonds and how much does it cost to plug and remediate a well. The analysis focused on the top 15 oil- and gas-producing states because, according to U.S. Energy Information Administration data, they accounted for 99% of the country’s output in recent years. Those states are Texas, Pennsylvania, New Mexico, Oklahoma, North Dakota, Louisiana, Colorado, West Virginia, Ohio, Wyoming, Alaska, California, Arkansas, Utah and Kansas.

With petroleum reservoir engineer Dwayne Purvis, we analyzed data from energy software company Enverus to determine the number of unplugged wells in each state, conservatively defining them as either clearly active or in some stage of idling. We checked these figures against previous estimates, such as what states self-reported to the Interstate Oil and Gas Compact Commission.

To calculate plugging costs, we used the estimates that states reported to the U.S. Department of the Interior in their notices of intent to apply for Infrastructure Investment and Jobs Act funds. We checked these figures against states’ next round of applications, Native American tribes’ applications and hundreds of orphan well plugging contracts from across the country. The agreements showed the detailed mechanics of the work, such as where cement plugs were placed, how surface infrastructure was removed and what post-remediation environmental monitoring was completed. Plugging costs varied widely depending on the depth, condition and geography of the well, but costs ballooned to the high six figures or even the seven-figure range when projects faced unanticipated obstacles, such as cannonballs having been dropped into a well as an improvised plug, wells igniting and the need to tear up city streets to plug some wells.

For bonding figures, we obtained the 15 states’ datasets of all active bonds tied to oil and gas well plugging, remediation and reclamation. We relied on figures reported by the Government Accountability Office for the value of bonds held by the Bureau of Land Management. We requested, but did not receive, that agency’s data, and the Bureau of Indian Affairs didn’t answer questions about bonds on tribal land. We didn’t include other jurisdictions’ bonds, as those are much smaller. (For example, New Mexico’s State Land Office requires bonds but only holds $20,000 for Remnant’s wells.)

To check our methodology, we gave a 10-member panel of petroleum engineers, law professors and former regulators an opportunity to comment on the findings. These experts have worked or currently work with the California Geologic Energy Management Division, the Bureau of Ocean Energy Management, Texas Christian University, the Carbon Tracker Initiative and other research organizations. They widely accepted the final methodology. The lead oil regulatory agency from all 15 states also had a chance to review the findings. Some states’ data showed slightly different numbers of unplugged wells than Enverus’ data, but we used the Enverus data because it is standardized and not all states provided well counts. Regulators also emphasized that bonds are an insurance policy not meant to cover 100% of the cost, that states won’t have to plug every well because the industry will plug many and that other agencies also hold bonds.

When estimating the total revenue generated by Remnant’s and Acacia’s wells, we used New Mexico Oil Conservation Division data to tell us how much oil and gas each well produced. Because some production wasn’t assigned a year, we worked with Purvis to model a likely production decline curve. We multiplied that by each year’s oil and gas prices, mainly found in Energy Information Administration data, and adjusted that for inflation, using Bureau of Labor Statistics figures.

Finally, our emissions testing fieldwork was completed using a handheld Bascom-Turner Gas Explorer Detector. We consulted Amy Townsend-Small, a professor of environmental sciences at the University of Cincinnati, to formulate the testing plan. We checked the readings with the manufacturer, whose employees said they had never seen their equipment register such high levels. They gathered in an office to call our reporter and ask if he was all right (he was because he wore an acid gas and organic vapor respirator around the wells).

Graphics by Jason Kao. Mollie Simon contributed research, and Agnel Philip contributed data reporting.

by Mary Hudetz and Logan Jaffe

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As major U.S. museums in recent weeks closed displays and exhibit halls containing Native American objects, the Museum of Us in San Diego hasn’t done the same.

That’s not because the anthropological museum is ignoring new federal repatriation rules, which took effect this year. Rather, more than five years ago, its board of trustees adopted a policy on collections from Indigenous communities that addressed the concerns the new rules focus on.

In its policy, the Museum of Us admitted it had blocked the repatriation of items and excluded Indigenous perspectives in exhibits centered on the groups’ cultures. It also acknowledged that it had failed to link the collecting practices it embraced after its founding in 1915 to the history of genocide against Native Americans.

“We’re not scrambling,” Kara Vetter, the Museum of Us’ senior director of cultural resources, said of the new regulations. “It doesn’t really change anything for us.”

The fact that the Museum of Us addressed its collections years ago stands in sharp contrast to the American Museum of Natural History in New York, which shuttered two exhibit halls where items from tribes in the northern U.S. were displayed. Harvard University’s Peabody Museum and the Metropolitan Museum of Art in New York also have removed select items from display. And Chicago’s Field Museum has shrouded dozens of display cases in its ancient Americas, northwest coast and arctic exhibits.

Each of those museums say they are prioritizing repatriations under NAGPRA and the perspectives of tribes. They also have removed items from display in the past in response to requests from tribes but are now closing or covering displays as they review information about the items and meet the mandates of the new federal regulations.

Founding displays at many of the country’s older museums reflected the once-widespread, racist view held by many white anthropologists and early archaeologists that Native Americans were an inferior and dying race of people whose ancestors needed to be studied and preserved.

Under the 1990 Native American Graves Protection and Repatriation Act, institutions are required to provide summaries of their holdings to tribes and federal officials — which then allows tribes or descendants to begin the process of reclaiming the items or their ancestors’ remains. In a series of articles last year, called “The Repatriation Project,” ProPublica reported how today, hundreds of institutions still hold the remains of over 97,000 Native Americans, along with tens of thousands of belongings that were buried with them.

Because museums have been so slow to relinquish hundreds of thousands of objects — often obtained generations ago through exploitative purchases or grave looting — they now face a new mandate to again consult with tribes about the items they still have, including those on display.

The rules mandate that museums have a “duty of care” to defer to tribes’ requests and customs in handling their ancestors and belongings in storage facilities. They also require the consent of tribes in order to exhibit cultural and funerary items.

The Field Museum in Chicago has shrouded dozens of display cases. (Kevin Serna for ProPublica)

While closures at some high-profile museums made headlines, other institutions like the Museum of Us and History Colorado, a publicly funded network of museums, had no need to scramble because they had already taken measures to work with tribal nations in deciding what items should be displayed and how.

“This is just a little piece of what NAGPRA is about, and if institutions were doing what they were supposed to do, this is not what they would have to do today,” said Shannon O’Loughlin, an attorney and chief executive of the Association on American Indian Affairs. “They would have already repatriated and educated the public more appropriately about who Native people are.”

Under the policy adopted in 2018, Museum of Us staff must obtain documented authorization from tribal communities to continue housing tens of thousands of items in its collections. And no items subject to NAGPRA, such as items taken from graves, are to be displayed. Museum leaders’ meetings with Indigenous people about the collection are expected to foster new exhibits that tell authentic and nuanced stories, according to its policy.

Today, the museum is years into a process that’s now mandated by the new NAGPRA regulations.

It has transferred items to tribes that request them. But it has also found that some tribes want items made by their ancestors to stay at the museum — such as several baskets from the Jamul Indian Village, 20 miles east of San Diego.

At History Colorado, curators also have not had to remove objects from exhibits or cover displays since the rules took effect. Founded as the state government’s historical society in the late 1800s, it has already returned to tribes all items and human remains subject to NAGPRA.

Today, History Colorado’s museums continue to present exhibits about tribes and their histories, but collaboration with tribal representatives who help make decisions about displays is now a “guiding virtue,” said Dawn DiPrince, History Colorado’s CEO and president. “Some of this really is about where authority is held and whose knowledge should come to bear. This is something that we deal with in the creation of exhibitions and materials in our collections.”

History Colorado improved its collaboration with tribes following a painful episode more than a decade ago in which the museum opened and promptly closed an exhibit on the Sand Creek Massacre. More than 230 Cheyenne and Arapaho people were murdered on the plains of eastern Colorado in the 1864 attack, and tribes have long told of how the trauma caused by the massacre has persisted among Cheyenne and Arapaho people for generations. Yet tribal representatives were excluded from the planning of the 2012 exhibit, “Collision: The Sand Creek Massacre, 1860s to Today,” which showcased weapons.

Tribes were immediately critical, pointing out that the exhibit’s title suggested the massacre was a two-sided battle when the tribes had not sought a confrontation with the U.S. government, whose troops killed women, children and elders at Sand Creek. They also noted the insensitivity of displaying weapons, DiPrince said.

Following years of talks, History Colorado began to work directly with tribal members on exhibits — first on one about Ute tribal nations that opened in 2018 and then a new exhibit on the Sand Creek Massacre, which opened in 2022, without items from the massacre site.

“Tribal reps and staff weighed every single word in that exhibition,” DiPrince said. “The belongings that are on exhibit were also selected by them.”

Chance Ward, History Colorado's NAGPRA coordinator who is Lakota and a citizen of the Cheyenne River Sioux Tribe, said that the state historical society also now accommodates tribal members’ requests for access to objects that are on display. For example, a ceremonial staff with eagle feathers in the Sand Creek exhibit is still used by the tribes, including during an annual healing run at Sand Creek Massacre National Historic Site. Afterward, tribal members return the staff to the exhibit, where text explains what it was used for in the past and how it is still used today.

“That’s a great example of what exhibits should reflect in all museums, that tribes are still alive and they still use modern contemporary items in their culture and for ceremonies and it’s not just black and white photos of us,” said Ward, who joined History Colorado in September.

He said History Colorado updated its repatriation policy this month to ensure its museums continue honoring tribes’ wishes, especially when a tribe initially consents to the museum possessing or displaying an object but later wants it to be returned.

“Consent today does not equal consent in the future,” the museum’s updated policy states. “Consultation with Native American and Indigenous Peoples on how to present their histories is an ongoing process that cannot be rushed.” The Museum of Us’ policy uses similar language.

It’s important for museums to acknowledge their past, said Elysia Poon, director of the Indian Arts Research Center at the School for Advanced Research in Santa Fe, New Mexico. Poon said she’s noticed over the past decade more museums are trying to work with tribes, but leadership’s involvement is a key factor in whether that happens.

Last year, she and a group of colleagues from tribal museums, culture centers and other institutions published new industry standards, calling for more deference to Native traditions and knowledge when displaying and storing Native American items. The standards inform the museum accreditation process through the American Alliance of Museums but are not formal criteria, Poon said, adding that their hope is to address the need for greater cultural competency and sensitivity within institutions.

“These are issues that have long been identified as problems with museum structures,” Poon said. “The structures are colonial inherently.”

When NAGPRA passed in 1990, Sen. Daniel K. Inouye of Hawaii acknowledged that reality, telling members of Congress, “For museums that have dealt honestly and in good faith with Native Americans, this legislation will have little effect.”

But for museums that have “consistently ignored the requests of Native Americans,” he said, “this legislation will give Native Americans greater ability to negotiate.”

by Jeremy Kohler

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Robert Tracy’s appointment as St. Louis’ police chief came with a sweetener: In addition to a $175,000 annual salary from the city, a nonprofit organization made up of local business leaders pays him $100,000 a year more.

The arrangement raised some questions at the time about whether the St. Louis Police Foundation’s money would influence Tracy’s approach to policing in a city with one of the nation’s highest rates of violent crime.

Thirteen months after Tracy took charge, those questions remain largely unanswered.

Megan Green, president of the board of aldermen and the city’s second-highest ranking official, said that while Tracy is generally responsive to the board, aldermen need more information about the financial relationship between the foundation and the Police Department and will now ask for it.

“I think we don’t know the exact extent to which he collaborates with the foundation or they have his ears,” Green said. “The public deserves to understand exactly, even beyond salary, how much money the police foundation is investing in the Police Department.”

Sharon Tyus, a longtime alderwoman who represents some north side neighborhoods most affected by crime, questioned whether Tracy’s arrangement with the foundation is legal.

“Who else can pay the chief?” she asked. “Can the criminals get together and pay the chief?”

Since it was founded in 2007, the foundation has given the Police Department at least $20 million in support, including both cash donations and in-kind gifts of training, weapons, protective gear and technology.

But until Tracy’s hiring, it had never paid a public official; the deal with Tracy, policing experts say, is unheard of for a U.S. police chief. (It’s far more common for coaches at elite college athletic programs.)

Tracy, who previously was the chief of police in Wilmington, Delaware, was the first chief in the St. Louis department’s 214-year history to be selected from outside the department. Mayor Tishaura O. Jones announced his appointment after a nationwide search with help from a firm whose work was paid for by another St. Louis-area business group, the Regional Business Council. Jones has praised Tracy for the city’s reduction in reports of violent crime in his first year on the job, while Tracy has credited the work of the department’s officers, community support and his own crime reduction strategies.

Tracy and Jones did not respond to questions from ProPublica or requests for interviews. Nick Dunne, a spokesperson for Jones, said in an email that the mayor has been “continuously transparent” about the selection process and Tracy’s salary.

“It remains clear that Chief Tracy is a worthwhile investment in the safety of St. Louis residents,” Dunne said.

Tracy assumed his role just a few months after ProPublica published stories focusing on the growth of private police forces in St. Louis. Those stories revealed that wealthier neighborhoods paid private companies for additional police services provided by moonlighting city officers and high-ranking leaders.

After the stories’ publication, Jones said in a radio interview that she intended to make changes to the private policing system to eliminate the disparities. But Tracy’s appointment has only cemented the city’s pay-to-play policing environment; the promised overhaul has not taken place. In a recent interview with KSDK-TV, Tracy said he didn’t want to prevent his officers from earning additional money in second jobs.

Experts in policing and public administration criticized private funding of Tracy’s salary. They said the foundation’s money threatens to divide Tracy’s civic loyalties or at least create the impression that he’s beholden to wealthy donors.

“When you have what could be perceived as a very high-level pay-to-play scheme, where certain businesses and entities have not just the chief’s phone number but literally sign more than a third of his paycheck, that’s just a bad look,” said Seth Stoughton, a professor at the University of South Carolina’s law school who has studied private policing.

Money from police foundations is used in a number of cities and in a variety of ways, from funding officer appreciation days to providing helicopters. They bridge budget gaps and provide resources that might otherwise be unavailable because of public funding limitations. Their supporters say they enhance what police can do and can foster partnerships between the community and the police.

But, Stoughton said, that kind of spending is “significantly different from giving a police chief a private stipend, particularly one that constitutes a substantial portion of his public salary. That’s weird.”

Justin Marlowe, a research professor at University of Chicago Harris School of Public Policy and the director for the school’s Center for Municipal Finance, said it was clear “something is wrong with the way St. Louis is budgeting for policing.” If it was important to pay the chief $100,000 more, he said, “then you find a way to do that through the budget process. And then that way it’s very clear where the accountability is and clear what the performance expectations are.”

Marlowe noted that public officials are expected to recuse themselves from votes or actions in which they have a financial interest to avoid even the appearance of a conflict of interest. While taxpayers and the foundation might share objectives, “What we’re worried about is, What if there’s not alignment?”

In public statements to the media, Tracy has said he is not beholden to the foundation. The foundation’s chairman, Doug Albrecht, has told reporters that the foundation’s only condition for Tracy was that he remain engaged with the community and with officers.

But in his first year on the job, the foundation played a role in financing Tracy’s downtown crime strategy, contributing $860,000 for additional patrols in the business district, an area that had seen spikes in crime and raucous parties that turned violent. The foundation said this funding was at Tracy’s request. And Tracy told the St. Louis Post-Dispatch he chose downtown for foundation-funded patrols because it’s a popular gathering place. The program has been renewed this year.

In the email to ProPublica, Dunne, the mayor’s spokesperson, said the downtown patrols were “designed to incentivize officers to work secondary under the department itself, rather than private companies.”

Joe Vaccaro, the longtime chairman of the Board of Aldermen’s Public Safety Committee until he lost reelection last year, said that, if he were still on the board, he would ask why Tracy chose downtown for the foundation-funded patrols.

“Why are you picking downtown over my neighborhood?” he asked. “There are more killings in areas of north St. Louis. Why is downtown more important? Oh, wait a minute, the money comes from the group that’s paying you.”

Vaccaro’s successor as public safety chair, Bret Narayan, said the financial relationship between the foundation and Tracy “is something we should be taking a hard look at.” He said that though the board has not typically received line-item detail on foundation gifts to the department, some aldermen have been discussing legislation that would require the department to provide that.

In an interview, the foundation’s president and executive director, Michelle Craig, said that its relationship with Tracy is substantially the same as with his two predecessors — though neither of them received foundation money. She said board members “do not have any more access than anyone else who would call the chief’s office and make an appointment.”

Tracy’s predecessor, John Hayden, who served as police chief for 4 1/2 years until his retirement in June 2022, said the foundation did not try to influence his decisions. He said the department would sometimes ask the foundation to buy equipment instead of waiting for the next year’s city budget allocation. He said that when the department said it needed bulletproof helmets, the foundation bought them, citing an incident where an officer had been shot.

Hayden said he wished that he’d had the opportunity to try to negotiate a higher salary than the $153,000 he made in his last full year. But he said he would have preferred to be paid by the city.

“I think then the citizens would be more comfortable that I wasn’t beholden to somebody,” he said.

Lt. Col. Michael Sack, who served as interim chief for about six months in 2022 and was one of four finalists for the chief’s job, said in a federal lawsuit against the city that he would have turned down the extra pay from the foundation so St. Louis would not have a chief “who has conflicts of interest.” (Sack says he was wrongly rejected for the job; the city says that the lawsuit has no merit and has asked a federal judge to dismiss it.)

St. Louis does not appear to have a clear need for private funding of its chief. The department’s budget this year is $189 million and, because it is about 300 officers short of its authorized strength of 1,215, it has not spent all the money the city has made available. Last year, the department was more than $12 million under budget.

The private pay for Tracy is part of a broader pattern where St. Louis-area business leaders, many of whom live and work outside the city, have quietly tried to influence police operations because of concerns about crime’s impact on the regional economy.

Albrecht, the foundation chairman lives in Ladue, an affluent suburb 12 miles west of St. Louis known for sprawling estates and private golf clubs. That’s also where his venture capital and private equity firm, Bodley Group, is based. The foundation’s mailing address is his office. Albrecht didn’t respond to requests for comment.

At the time of Tracy’s hiring, Albrecht said the group learned during the search that the process was limited by the low pay for the position. The city charter requires that the police and fire chief be paid equally. Fire Chief Dennis Jenkerson made $157,423 in 2022. He was paid $175,000 in 2023 after Tracy was hired.

Jenkerson said in a brief interview that he was “in the process of working on that issue” and that “parity is parity.” He said he did not want to comment on what he thought about Tracy’s foundation pay.

St. Louis ranks at the lower end for how it pays its chief — at least before Tracy. A survey by the Police Executive Research Forum found that, in 2021, the average salary for chiefs in the 38 largest U.S. police departments was $232,380.

The additional pay for the chief’s job was never part of publicly available information about it. And it’s not clear if the city considered paying the chief a higher salary, even if it meant paying the fire chief more. Green said she didn’t know if such a proposal was taken to the Board of Aldermen before she was elected its president in November 2022.

Her predecessor, Lewis Reed, resigned and is in federal prison on a bribery conviction.

Records the foundation provided to John Chasnoff, a local activist who has pressed for transparency over the city’s policing, show that its board members were discussing a plan to contribute to the next chief’s salary at least three months before Tracy’s selection. An email to board members from Albrecht said the city’s maximum salary of $175,000 “will not allow us to acquire the highest level of talent for this position.”

Albrecht wrote that to secure the contract of up to $100,000 with the new chief, the foundation would work directly with the search firm the city used and, ultimately, with the candidate. “The city would not be involved,” he wrote.

In an email to St. Louis Police Foundation members, its chairman, Doug Albrecht, discusses a pay package for the new city police chief. (Obtained by ProPublica)

Minutes from a foundation board retreat in September 2022 indicate members agreed that this financial support was crucial to attract the most qualified candidate, even if they had no control over the process or the eventual appointee.

Minutes from a St. Louis Police Foundation retreat (Obtained by ProPublica)

Tracy insisted in a KMOV-TV interview that he was not beholden to the foundation and that his integrity was intact because “that was a deal with the city, and not a deal to me personally.”

But that appears to not be true. A contract released by the foundation — after pressure from Chasnoff — shows that it was signed by Tracy and Albrecht.

Besides salary, the contract requires Tracy to conduct a series of outreach efforts, including town hall meetings with department staff, regular communications and updates to the community by a blog or other means, and annual meetings with leaders in each of the city’s 14 wards.

The agreement runs for three years or unless Tracy is fired by the city or the foundation has probable cause that he has committed misconduct or failed to uphold the agreement.

Craig said the foundation was pleased with Tracy’s performance.

“I’m not in the media, so I don’t know the struggles of getting his attention,” she said, “but to us it appears he’s in a lot of places in the community, and that’s what he’s supposed to be doing.”

by Megan O’Matz

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week.

Update, Feb. 20, 2024: On Feb. 19, Wisconsin Gov. Tony Evers signed the redistricting legislation into law. “Today is a beautiful day for democracy,” he told a room full of cheering supporters, adding, “Wisconsin is not a red state; it is not a blue state; Wisconsin is a purple state, and I believe our maps should reflect that basic fact.”

Wisconsin’s dinosaur-shaped legislative district could soon be history.

The curiously drawn district and other oddities associated with the state’s extreme gerrymandering would be erased in new voting maps passed this week by the Wisconsin Legislature.

A state Supreme Court decision finally forced Wisconsin Republicans to cede an advantage they enjoyed for more than a decade with maps that made the state one of the nation’s foremost examples of gerrymandering.

The Senate and Assembly voted to adopt voting maps drawn by the office of Gov. Tony Evers, a Democrat. Evers said a week ago that he would sign his redistricting plan into law if passed unchanged by the Legislature, and proponents of fairer maps have encouraged him to do so.

The surprising legislative development promises to end a six-month battle in front of the state’s now left-leaning high court, which ruled the GOP maps unconstitutional shortly before Christmas.

The new design resolves many of the irregularities in the current electoral maps, chief among them the “Swiss cheese” appearance that stranded some constituents in segments detached from the rest of their districts.

One of the more obvious examples of partisan artifice was in the northwest corner of the state, in the 73rd Assembly District, where the GOP had strategically added Republican areas and subtracted Democratic ones in a plan enacted in 2022. Residents joked the contours came to resemble a Tyrannosaurus rex.

The maneuver was successful. That year, a Republican won the seat, which had been held by Democrats for 50 years. The new map completely redraws that district and others.

“The legislature will be up for grabs,” Republican Assembly Speaker Robin Vos said from the floor on Tuesday, the day the vote was taken.

In an unusually magnanimous gesture, Vos said, “Pains me to say it, but Gov. Evers gets a huge win today.”

Wisconsin Gov. Tony Evers (Stephen Maturen/Getty Images)

Even under the governor’s maps, the GOP is still expected to retain majorities in both chambers, though the party’s advantage would likely be slimmer than the absolute authority it now commands, particularly in the Senate. Currently, the GOP has a supermajority in the Senate and a near supermajority in the Assembly.

Vos acknowledged in a news conference that running under Evers’ map is “going to be more challenging, there’s no doubt about that.” But, he said, “I still think we can win because we have a better message.”

Prior to the legislative action, justices had been set to select new district maps from a group of proposals, including the one from Evers. Indications were the decision would not be favorable to the GOP.

Rather than take their chances, Republicans decided to approve the governor’s maps, which are considered to be “friendlier” to the GOP than the others when measuring partisan bias and incumbent matchups.

A Marquette University analysis determined that if the 2022 election had taken place under Evers’ maps, it’s likely that Democrats would have won an additional 11 seats in the Assembly and five in the Senate, neither enough to flip control.

Nine Senate Democrats voted against Evers’ plan, signaling concerns that the GOP’s approval was a strategic ploy to be followed by a challenge in federal court from a Republican ally. “I am voting no because I do not trust what you guys are up to,” said Sen. Chris Larson, a Milwaukee Democrat.

But Vos downplayed the likelihood of more court action, telling reporters Tuesday that he preferred to get on with the business of campaigning and talking about ideas with voters. “I think that is a better answer than drawn-out court battles and going through millions of dollars of taxpayer expense when there’s really no need to do so,” he said.

The Assembly passed the governor’s maps without debate. Only one Democrat voted yes.

Democrats were unhappy with a provision in the bill that would stall the implementation of the new maps until November — a move seen to benefit Vos, who is facing a recall effort from constituents on the far right. Democrats also indicated a desire to let the state Supreme Court case play out.

It was only six months ago that a new justice, Janet Protasiewicz, took office, tilting the court decidedly to the left. During her campaign, which she won in a landslide, she made it clear she would welcome the chance to review the constitutionality of the maps, flatly describing them as “rigged.”

A day after her swearing-in ceremony, a maps case landed on the court’s doorstep, brought by 19 Democratic voters. For months after Protasiewicz’s election, Vos threatened to impeach her if she did not recuse herself from the case, claiming her remarks on the campaign trail made her biased. He later abandoned that tactic.

On Dec. 22, the high court overturned the current maps and ordered the parties to propose new ones. The vote on the decision was 4-3, with Protasiewicz siding with the majority.

The court hired two academic consultants to analyze the proposals and issue a report evaluating the plans for their conformity to standard districting requirements, including compactness and equal population distribution.

The consultants found that plans offered by GOP lawmakers and by a conservative policy group constituted “partisan gerrymanders” and should not be considered.

The four remaining proposals greenlit by the consultants were submitted by the plaintiffs, Evers’ office, a group of Democratic senators, and a team of mathematicians and data scientists. The consultants — from Carnegie Mellon University in Pittsburgh and the University of California, Irvine — determined that those four plans were “similar on most criteria.”

Good-government groups applauded the possibility of a legislative agreement, largely because it brings about stability and a measure of political certainty until the next redistricting process, after the 2030 census. Besides, said Jay Heck, executive director of Common Cause Wisconsin, “The governor’s maps are pretty darn good.”

One of the key problems with the current maps, the court concluded, was that the districts had noncontiguous shapes.

The state’s constitution stipulates that Assembly members must be elected from districts consisting of “contiguous territory.” Likewise, Senate districts, which are each made up of three Assembly districts, must consist of “convenient contiguous territory.”

Fifty-five of the state’s 99 Assembly districts and 21 of 33 Senate districts contained “disconnected pieces of territory,” according to the petition presented to the Supreme Court.

“A map can’t be fair if it doesn’t meet the requirements of the constitution,” said Debbie Patel, founder of North Shore Fair Maps, a group of suburban Milwaukee residents who have been fighting for statewide maps that are not skewed in favor of either party.

The random islands or irregular blobs in the current maps are largely due to the annexation of land over time by cities and villages, resulting in disjointed municipal boundaries.

The Evers maps and the others under consideration fix that problem.

The 88th Assembly District, for example, which currently includes eastern portions of Green Bay, has a couple of islands and a hole that would be eliminated under Evers’ plan.

The district’s current occupant, Republican Rep. John Macco, voted yes Tuesday, even though his home would no longer be within the district’s boundaries. “They literally carved me out by 581 feet. Intentionally,” he said.

He expects to have to sell his house and move to compete again there. “I’ll do whatever I have to do to represent the people of the 88th District,” he said in an interview.

In northwest Wisconsin, Democrats hope they can reclaim the 73rd District under a new map. All four maps under court consideration relegate the “T. rex” to fossil status.

Under Evers’ iteration, the district would no longer stretch more than 100 miles south from the Minnesota border city of Superior. Instead, it would be more homogeneous, encompassing much of Douglas County, and reach farther east, embracing more of the coastal communities along Lake Superior.

The current map, first, shows the 73rd “T. rex” Assembly District, while the new map, second, shows the district’s lines under the governor’s plan. District 73 is in yellow. (Maps by ProPublica using Dave's Redistricting/Social Good Fund)

“Historically, you’ll see from voting records, it’s always been blue up here right along the lake,” said Laura Gapske, a Democrat who narrowly lost in 2022 to the district’s current representative, Republican Angie Sapik. Gapske handily carried Douglas County, with 58% of the vote. She’s now running for the Superior School Board.

Sapik, who wrote social media posts cheering on the Jan. 6 insurrectionists, has announced her reelection bid. She declined to speak to ProPublica but complained on Facebook in early February that the proposed maps “would make this district upwards of 65% Dem to 35% Republican. Does that sound like a ‘Fair Map’ to you?”

One area where the four maps differed was in how they handled redistricting for territories aligned with Wisconsin’s federally recognized Native American tribes.

The current GOP map divides four of 10 reservations into multiple Assembly districts, “disrespecting Tribal communities of interest,” according to a brief filed by the Midwest Alliance of Sovereign Tribes and the Lac du Flambeau tribe in Wisconsin. Lawyers for the tribes have argued that dividing tribal members among different districts dilutes their voting power.

The Lac du Flambeau tribe and the Midwest Alliance did not favor the governor’s plan, supporting instead a proposal put forward by the group of mathematicians, in which each tribe would have had its own Assembly voting district.

In its brief, the alliance called the mathematicians’ proposal “hands down, the best map for all of Wisconsin, including Wisconsin’s Indian people and communities.”

A spokesperson for Evers told ProPublica in an email that “the governor’s maps do unite tribal communities in several respects while still complying with constitutionally required criteria to minimize splitting community and county lines.”

The Wisconsin Fair Maps Coalition, while celebrating the prospect of new maps, is vowing to continue to push for a nonpartisan body, rather than politicians, to handle future redistricting plans.

“The coalition isn’t done,” said Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, which is part of the coalition. “We still need a legislative fix. We need an independent commission. We need, likely, a constitutional amendment that would codify that. So our work is not done.”

by Andy Kroll

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories as soon as they’re published.

More than two months after authorizing subpoenas for key figures in the Supreme Court’s ethics controversies, Senate Democrats have yet to issue them. The delay has caused outside activists to demand that Democrats press ahead with their investigation.

On Nov. 30, the Democratic-led Senate Judiciary Committee voted to approve subpoenas for Republican donor Harlan Crow and conservative legal activist Leonard Leo after the two men had refused to voluntarily provide all the information requested by the committee about gifts for Supreme Court justices.

“Both Leonard Leo and Harlan Crow are central players in this crisis,” Sen. Dick Durbin, D-Ill., who chairs the Judiciary Committee, said at the time. “Their attempts to thwart legitimate oversight efforts of Congress should concern all of us.”

But in an interview last week, Durbin told ProPublica that he had not yet issued the subpoenas to Crow and Leo. Questioned about the timing or what issues remained to be worked out, he said only: “Still working on it.”

The decision to authorize subpoenas came in response to stories by ProPublica that detailed how, for decades, Crow had paid for lavish vacations for Justice Clarence Thomas. In 2014, Crow purchased Thomas’ mother’s home in Georgia. Crow even paid private school tuition for Thomas’ grandnephew, whom the justice said he was raising “as a son.”

Thomas did not disclose the vacations, real estate purchase and tuition assistance on his annual financial disclosure forms. After ProPublica’s reporting, the Supreme Court adopted its first-ever ethics code, though it’s not clear if and how it will be enforced. Thomas has said that he did not need to disclose the free vacations and that he didn’t report the real estate sale because he misunderstood the rules. Crow has said he has never tried to influence Thomas on any matters.

ProPublica also revealed that Leo, the influential lawyer and Federalist Society co-chairman, arranged a luxury fishing trip to Alaska for Justice Samuel Alito in July 2008 that Alito also did not disclose. Alito flew to Alaska on a private plane provided by Paul Singer, a hedge fund billionaire and major conservative funder.

Several years after the trip, one of Singer’s companies had a case before the Supreme Court that Alito ruled on. Singer’s company won by a near-unanimous ruling. Alito says he did not need to disclose the trip or recuse himself from the case. Singer has said he never discussed his business with the justice.

Leo is considered one of the most powerful figures in U.S. politics, an architect of the Supreme Court’s conservative supermajority and now the leader of a billion-dollar dark-money fund aimed at reshaping American culture and government.

Leo and Crow did not respond to requests for comment.

In the recent interview, Durbin would not give a reason for the delay in sending the subpoenas. Sen. Sheldon Whitehouse, D-R.I., a Judiciary Committee member and vocal supporter of court reform, told ProPublica that the committee’s November authorization vote gave Durbin leverage to get information from Crow and Leo without legally issuing the subpoenas.

“The authority to have the chairman issue those subpoenas has put him in a much-improved negotiating position,” Whitehouse said. “I’ll just leave it at that.”

It’s not uncommon for congressional committees to authorize a subpoena and then ultimately obtain information voluntarily through negotiations, according to a Congressional Research Service analysis. However, Leo said in November that he would not cooperate with the Judiciary Committee’s efforts, which he called an “unlawful campaign of political retribution.” A Crow spokesperson said then that the committee’s inquiry was “invalid” but added that Crow had offered “extensive information” to the committee and “remains willing to engage with the committee in good faith, just as he has consistently done throughout this process.”

Christina Harvey, executive director of the anti-corruption group Stand Up America, said that the Judiciary Committee’s efforts to address the Supreme Court’s ethics controversies would remain “incomplete” if the committee didn’t get all the information it requested. “Crow and Leo’s insistence that the law does not apply to them should not intimidate or deter Judiciary Democrats,” Harvey said.

If Durbin’s committee did eventually issue the subpoenas to Crow and Leo and the two men still refused to comply, the Judiciary Committee could seek to enforce the subpoenas by filing suit in federal court. It could also make a criminal contempt certification to the Justice Department for the refusal to cooperate with a legal subpoena.

A civil suit would require a vote in the Senate to approve the legal action, and the Democrats might not win it with their slim majority. The suit itself could take months or years to play out, as happened in other recent subpoena fights.

Alex Aronson, executive director of the advocacy group Court Accountability and a former legal counsel to Whitehouse, told ProPublica that making a criminal contempt certification typically requires a majority vote in the House or Senate. But Aronson said that such a vote wasn’t legally required under his interpretation of the relevant statute, and that Durbin’s committee should consider all options to get the information it seeks.

“There is too much at stake for Chair Durbin to capitulate to Republican stonewalling and bad faith now,” he said. “I’m hopeful and confident he will see this through.”

Correction

Feb. 16, 2024: This story originally misstated the relative whom Supreme Court Justice Clarence Thomas said he was raising “as a son.” It was his grandnephew, not his nephew.

by T. Christian Miller

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In January, the Biden administration pledged to increase public access to a wide array of Medicare information to improve health care for America’s most sick and vulnerable.

Some Medicare plans' lack of transparency “deprives researchers and doctors of critical data to evaluate problems and trends in patient care,” said Xavier Becerra, the secretary of health and human services, in a statement.

So researchers across the country were flummoxed this week when the Centers for Medicare and Medicaid Services announced a proposal that will increase fees and diminish access to claims data that has informed thousands of health care studies and influenced major public health reforms.

More than 300 academics — a who’s who of health economics researchers — have already signed a draft letter decrying the “catastrophic impact” the new proposal would have on health care research. Nearly half of all Americans are covered by Medicare, Medicaid and the Children's Health Insurance Program. Medicare and Medicaid claims contain detailed information about payments for medical care, including diagnoses, treatments and patient demographics.

The CMS data “is a national resource,” said Anirban Basu, a professor of health economics at the University of Washington. “It’s used for research that helps to develop public policy, that helps in health equality, that plays a role in legislation. Most importantly, such research translates to better health and access for the 160 million CMS beneficiaries.”

CMS explained that the changes were aimed at better protecting people’s health care records, citing “an increase in data breaches across the healthcare ecosystem.” In its announcement, the agency did not cite any examples of unauthorized releases of information involving research organizations or universities. However, last year, hackers stole the personal medical information of more than 600,000 Medicare beneficiaries from a CMS contractor.

“Expanding user-friendly, secure access to CMS data continues to be a priority for the agency,” said Jonathan Blum, the principal deputy administrator and chief operating officer of CMS, in a statement. He added that the agency “will carefully consider how to best meet stakeholders’ data needs while protecting beneficiary data.”

Under the current system, academics are able to request claims data for a one-time fee of as little as $20,000 — a price that can increase depending on the amount of information requested. The data is stored on university computers that meet data protection requirements and that allow access to multiple users for a small additional charge.

Researchers have used such data to conduct studies that influenced numerous public health care initiatives, including the development and evaluation of the Obamacare program. Just last month, Basu published a paper, using information from the CMS programs, that analyzed the cost-effectiveness of gene therapy treatment for sickle cell disease, a blood disorder that primarily affects people of African descent.

Researchers have also used the data to discover potential abuse and fraud in Medicare and Medicaid — the two programs together account for more than $1.7 trillion in government spending.

The new proposal, however, would force researchers to use a CMS-controlled computer platform to analyze data, instead of distributing it directly to universities and other institutions. Costs would start at an estimated $35,000 and would allow access to only one researcher and require annual renewal fees. Blum noted that researchers, however, would no longer have to bear the costs of storing and securing the data.

Research teams on complex projects can include dozens of people and take years to complete. “The costs will grow exponentially and make access infeasible except for the very best resourced organizations,” said Joshua Gottlieb, a professor at the University of Chicago’s Harris School of Public Policy. He has used the data to show that when Medicare increases its fees, private insurance companies follow by hiking their own.

One of the major concerns is that higher prices will shut down research by Ph.D. students and junior faculty, whose budgets typically wouldn’t cover a single user fee. “Some important research would be reduced” if the proposal is implemented, Basu said.

Some researchers are also concerned about having to use a government-controlled system to conduct research that may be critical of CMS. Medicare Advantage — a program that allows private insurance companies to pay for health care services for the elderly — has come under increasing scrutiny for rising costs.

Another unanswered question is how the CMS computer platform would accommodate additional requests from the thousands of researchers who now use data stored on their own computers. Academics often perform complex statistical analyses on data that require extensive computer time to process.

“It seems crazy to me that given the value of human life and what we spend on healthcare as a country, that the administration would take a step to make research harder not easier,” said Zack Cooper, a professor of public health and economics at Yale.

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