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by McKenzie Funk

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A closed-circuit video camera zoomed in on the tarmac of Seattle's Boeing Field one recent afternoon, buffeted by 30-mile-an-hour gusts as it captured the arrival of a charter jet. The jet rolled to a stop alongside two buses. Behind their tinted windows, still invisible to the camera, were people waiting to be deported from the United States.

"Windy," muttered a woman watching the video feed on a projector screen. Struggling to make out the plane’s tail number from the shaky image, she stood up for a closer look.

On the screen, a stairway was wheeled over, and a cluster of men in bright yellow jackets descended from the plane. Another man stepped out of an SUV that partly blocked the foot of the stairs from view. Soon the group lugged over black bags, opened them, and laid out something that looked like chains.

When detainees began emerging from the camera’s blind spot, their ankles, waists and wrists appeared to be shackled together, and they seemed unable to hold the handrails as they shuffled up the wet stairs in the wind.

"So dangerous," said another woman watching the video feed. People kept coming, and she and her partner kept count: "Seven ... eight ... nine ... ten ... eleven ... twelve." One by one, the hunched figures disappeared into the plane. After an hour, it was gone.

People board a deportation flight at King County International Airport. The original video image has been zoomed in on for greater clarity. (Obtained by ProPublica)

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The observation room at Boeing Field offers what is arguably America’s best real-time window into our vast network of privately run deportation flights, a system that has generated troubling reports of passenger mistreatment and in-flight emergencies.

In 2017, passengers on a deportation flight to Somalia said they were left bound and shackled in their seats for 23 hours during a stopover, some forced to soil themselves because they were denied bathroom visits. A year later, the right landing gear collapsed as a plane carrying detainees touched down at an airport in Louisiana, sparking a fire on its wing, filling the cabin with the smell of burning rubber and sending shackled passengers racing toward the three functioning evacuation slides after another slide failed to deploy. The next year, a detainee at the same Louisiana airport tumbled from the top of the boarding stairs and was rushed to the hospital.

While news organizations have reported on some of these incidents aboard what the government calls ICE Air, key details about how the system works would still be hidden were it not for a group of researchers who are now part of the work inside the observation room.

The University of Washington Center for Human Rights has spent the past six years trying to shed light on deportation operations, even as U.S. Immigration and Customs Enforcement and its contractors and subcontractors have taken steps that shield their activities from view. (ICE declined ProPublica’s requests for comment.) Now the human rights center is in close contact with the observers at Boeing Field, hoping their weekly vigil will yield new clues and drive further research.

Every scrap of information is hard won.

As the recent dramatic influx of immigrants has prompted a push among political leaders to accelerate expulsions, what Seattle's single shaky tarmac camera really shows is how little the public is allowed to know about the nation’s hidden deportation infrastructure.

The Washington human rights center’s investigation of ICE Air began in 2018 with a modest goal: to prove that deportation operations took place at King County International Airport, as Boeing Field is officially known. Liberal local officials had enacted various “sanctuary” policies to insulate their residents from then-President Donald Trump’s crackdown on immigrants, but they were unaware (or could at least claim to be unaware) of ICE flights at the county-owned airport. “They all played dumb,” said Maru Mora Villalpando of the immigrant rights group La Resistencia. “All of them were like, ‘Wait, what, there are deportations happening here?’”

The center began gathering documents that proved it, and also hinted at the worldwide breadth of ICE Air's network. Their investigation grew. Through records requests to ICE, and after interventions by Washington's congressional delegation, researchers obtained an ICE Air database spanning eight years of global operations: 1.73 million passenger records from nearly 15,000 flights to and from 88 U.S. airports — Boeing Field indeed among them — and to 134 international airports in 119 countries around the world.

In April 2019, the center published this trove of raw data and a pair of reports cataloging a history of in-flight abuses and potential due process violations.

The Washington human rights center reports also mapped the layers of contractors and subcontractors that provide ICE with planes, security guards, in-flight nurses and access to local airports. “Over the past decade, the institutional infrastructure behind these flights has shifted from a government operation run by the US Marshals Service on government planes,” the researchers wrote, “to a sprawling, semi-secret network of flights on privately-owned aircraft.” Their reports identified the charter companies by name.

A great majority of the deportation flights leaving Boeing Field were bound not for destinations overseas but for domestic ICE Air hubs closer to America’s southern border, over 1,000 miles away, where detainees could be placed on connecting flights to countries of origin. The Washington researchers showed that Boeing Field was a busy part of the network, having hosted close to 500 ICE Air flights since 2010, collecting landing fees as the government shipped off at least 34,400 people for deportation.

Confronted with these findings, King County Executive Dow Constantine issued an order designed to eventually make it impossible for ICE Air to get any ground support, such as refueling, at Boeing Field. The company providing these ground services to ICE, which had also been named in the center’s reports, decided to stop rather than wait until its contract came up for renewal. The flights suddenly ended. (The company, Clay Lacy Aviation, and its successor in Seattle, Modern Aviation, did not respond to requests for comment.)

A game of cat and mouse had begun, pitting the Trump administration — and later the Biden administration — against local sanctuary advocates.

First, ICE switched locations. It began charter operations out of a municipal airport in the small city of Yakima, located in the farming region about three hours east of Seattle.

But activists began showing up at the Yakima airfield, recording tail numbers and keeping count of people being deported.

Second, ICE changed its flight numbering system. The human rights center had disclosed in its 2019 report that it used the federally assigned prefix “RPN-” for “repatriate” to plug information into free flight-tracking websites and obtain a plane’s tail number and ownership. So ICE dropped the “RPN-” and adopted the call signs of its various charter companies.

Activists became more sophisticated. Thomas Cartwright, a retired financial executive in Ohio turned refugee advocate, figured out how to identify ICE Air missions by analyzing flight patterns, operators and airport pairs. He began to track charter planes by the dozens, enabling the human rights center to issue a 2022 report linking specific deportation flights to the sports teams and musical acts that chartered the same planes.

“I'm retired, and I really do need to retire," Cartwright said. "I don't know who's going to do it after me.”

Meanwhile, the U.S. Department of Justice proceeded with a lawsuit against Constantine, the King County executive, to restart ICE flights at Boeing Field. Announcing the suit in February 2020, then-Attorney General William Barr had called it “a significant escalation in the federal government’s efforts to confront the resistance of 'sanctuary cities.'"

A judge ruled against the county in March 2023, and ICE made preparations to return.

Signature Aviation, a ground-support company at Boeing Field with an $11.5 million new terminal building for its executive clients, agreed to service ICE Air out on a hard-to-see part of the tarmac. Two charter companies, iAero Airways and GlobalX, would do the flying. (None of the companies responded to ProPublica’s requests for comment.)

La Resistencia, the local immigrant rights group, responded by pressuring King County officials to set up a viewing area. The county hastily opened a conference room and closed-circuit video feed for observers.

Students from the University of Washington protest Signature Aviation at King County International Airport. Signature services ICE deportation flights at the airfield. (Jovelle Tamayo, special to ProPublica)

On May 2, according to a spreadsheet kept by the observers, a white Boeing 737 with the tail number N802TJ arrived from Phoenix. The plane was known as the Straight Talk Express when used on Sen. John McCain's 2008 presidential campaign, photos and news reports from the time show. On this day iAero was using it for a deportation flight. ICE Air was back.

Volunteers now observe deportation flights every week at Boeing Field, usually on Tuesday mornings.

Coordinating their efforts along with La Resistencia’s Maru Mora Villalpando is Stan Shikuma, a 70-year-old retired nurse and the co-president of the civil liberties group Tsuru for Solidarity.

“Tsuru” means “crane” in Japanese. The group consists of Japanese American survivors of U.S. incarceration camps during World War II and their descendants. They first organized to protest what they saw as similar mass camps for immigrant families during the Trump administration. One, in Dilley, Texas, was just 45 minutes down the road from Crystal City, Texas, the site of an infamous camp that housed Japanese American families. In 2019, the group that would become Tsuru led a large rally outside the Dilley detention center, giving speeches and playing taiko drums and stringing tens of thousands of origami paper cranes along the fence. The cranes became their symbol. They rallied under the cry “Stop Repeating History!”

At Boeing Field, the volunteers record tail numbers and keep a count of how many people get on and off each plane. The observations can serve as “a check on ICE in case they do put out numbers,” Shikuma says. “If they say, ‘We’ve only deported 25 people in the last two months,’ we can say, ‘Well, we counted 85 in the last two weeks.’”

First image: Maru Mora Villalpando, leader of La Resistencia, views a deportation flight on a live feed. Second image: Stan Shikuma, left, and Margaret Sekijima observe a departure, recording the number of people they see board the plane. (Jovelle Tamayo, special to ProPublica)

The second goal, Shikuma says, is to "let the people on the plane know that we're out here and that someone cares." In this effort, the groups, hidden away as they are in the observation room, have been less successful.

When Shikuma is on duty, he sits with one or two other observers in the conference room and stares intently at the closed-circuit video screen on the wall. He sips coffee and checks FlightAware, a popular plane tracking app, on his phone. He watches the buses roll in from the 1,575-bed Northwest ICE Processing Center in nearby Tacoma, run by private-prison contractor The Geo Group.

After the ICE Air flight arrives, usually from Phoenix but sometimes Las Vegas, San Antonio or El Paso, Shikuma marks in his notebook the time, the plane’s tail number, how many detainees exit and how many board.

Planes meet buses behind a large hangar, almost entirely out of view from a perimeter road. There are often three buses, but only two of them, Shikuma said, ever unload passengers. The third parks along a fence line, blocking any remaining view from the road. While the county's closed-circuit camera can still capture the boarding process, the positioning of the SUV and two passenger buses means that detainees are generally visible on the camera only for the seconds it takes them to ascend the stairs.

Twice in recent months volunteers witnessed what they considered unusual activity during boardings on the tarmac, prompting the human rights center to request records of internal ICE documentation on those two flights under the Freedom of Information Act.

Activists say that King County, despite its left-leaning reputation, has been a more reluctant partner in keeping tabs on deportation flights than was Yakima, which had regularly shared passenger tallies.

But Cameron Satterfield, a county spokesperson, said officials are doing what they can within a limited set of options. “We have a federal judge saying, ‘No, this is a public airport,’” he told ProPublica.

The county logs ICE Air’s arrivals and departures on its website, though the page was missing for weeks this winter after an update. Local officials have been unable to obtain passenger data from ICE, not even a head count. “They have told us: You can send a FOIA request,” Satterfield said.

This means that the only practical way to get numbers is the volunteers’ flight-by-flight paper tally. In 2022, ICE's average processing time for what it deems "complex" requests hit a record high: 186 days. At the end of that year, it had a backlog of 16,902 unresolved cases, a fourfold jump from 2021.

ProPublica’s review of deportation videos posted online by ICE shows what a difference the unvarnished view from Boeing Field can make. The agency began routinely posting the productions in May.

The 97 videos ProPublica examined, ranging in length from 22 seconds to almost 3 minutes, show signs of careful framing and editing. While detainees are commonly shown climbing the steps in handcuffs and the waist chains that secure them, the videos often cut to a new shot before leg shackles can make an appearance. When leg shackles are visible, they are typically out of focus, discernible only if you know to look for them.

It is common on ICE Air to place passengers in five-point restraints — wrists, ankles, and waists in chains — even as the agency’s own statistics show that less than half of the people deported in 2023 had any kind of criminal conviction, let alone for serious felonies that could suggest a possible risk to others on board.

Carrier names and tail numbers are blurred or absent in the videos, consistent with tail-number redactions in documents the Washington human rights center has gradually received from ICE in the years after its 2019 reports. The agency cites an exemption to the Freedom of Information Act protecting records that would reveal "techniques and procedures for law enforcement investigations or prosecutions" or "could reasonably be expected to risk circumvention of the law."

In this outtake from a June 2023 video released by ICE of a deportation flight from Alexandria, Louisiana, to Guatemala, people are filmed out of focus, making it difficult to see any leg shackles. (U.S. Immigration and Customs Enforcement)

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The agency did not respond when asked by ProPublica how disclosing tail numbers could pose such risks, nor when asked to explain the use of five-point restraints. When the California news organization Capital & Main wrote in 2021 about ICE flights that went badly, it quoted a spokesperson saying the agency required safety reports from flight brokers and that “ICE retains the ability to hold the vendor accountable if there are performance issues.”

The spokesperson also told Capital & Main that the agency “utilizes restraints only when necessary for the safety and security of the detainee passengers, flight crew, and the aircraft.”

What ICE’s online videos don't show is revealing in its own right. In spring 2023, the center obtained a series of ICE Air incident reports detailing various accidents during charter operations, including the one in which a detainee in Alexandria, Louisiana, tumbled down the boarding stairs. Agency investigators recommended that contractors and subcontractors avoid such accidents in the future by placing a guard midway up the stairs to help detainees board and to catch any who lose their balance.

Yet in most of the ICE Air videos, including 32 of the 33 shot over the last year at the Louisiana airport where the man fell, ICE's contractors did not heed the investigators’ suggestion.

At Boeing Field, observers have documented the same practices. Week after week, rain or shine, including the recent gusty day when the tarmac camera shook in 30-mile-an-hour winds, chained detainees continue to climb aboard the planes alone.

On a calmer day this winter, Shikuma shared the observation room with Mora Villalpando and with fellow Tsuru volunteer Margaret Sekijima. FlightAware showed an inbound Airbus A320 operated by the ICE Air subcontractor GlobalX. Buses from the detention center, which normally arrive well in advance, had yet to appear on the screen. “Very unusual,” Shikuma said. “I wonder if they've changed up the protocol."

A few weeks prior, Mora Villalpando had led a group of protestors who intercepted the buses outside the gates of the airport, waving at the detainees inside and unfurling a banner that read "You are not alone" in three languages spoken by recent groups of Northwest detainees: English, Spanish and Punjabi.

Minutes later, two buses traversed the video frame from left to right. A young woman burst into the room. “They changed the entrance and came from the north!” she said. She was a student from the University of Washington, there to lead a demonstration in front of Signature Aviation’s gleaming terminal building. “I’m going to go round up the troops.”

The Airbus landed. The observers took down its tail number. They counted 29 detainees getting on, zero getting off.

Shikuma and Mora Villalpando went outside to join the protesters. Sekijima stayed in the conference room, her expression tight, her eyes on the screen until the plane left for El Paso, its next destination in ICE Air’s endless loop of deportation flights.

Help ProPublica Reporters Investigate the Immigration System

by Jake Pearson, illustrations by Dominic Bodden, special to ProPublica

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The temperature was plummeting on Thanksgiving eve when Judith Zbiegniewicz wrapped herself in a blanket, picked up her phone and tapped out yet another plea for help to New York Guardianship Services. It was 2018, and for the previous five years the company, whose slogan is “caring that makes a difference,” had overseen nearly every major decision in her life, as it did for hundreds of New Yorkers deemed incapable by the courts of looking after themselves.

The organization had repeatedly maintained in court filings that Zbiegniewicz, who was 65 and suffered from depression and anxiety, was doing well under its supervision and that the Queens apartment it had placed her in was the “best and only place for her.” Each year, court examiners reviewed the reports and a judge signed off on their assessments.

In truth, though, Zbiegniewicz lived in squalor on the second floor of a dilapidated home whose roof had partially collapsed. She’d complained when her mattress teemed with bedbugs and when rats gnawed the legs of her kitchen chairs. Yet every month, her legally appointed guardian had taken $450 in compensation from her bank account as her living conditions deteriorated.

Now, with no heat and a cold front barreling down on the city, she stuffed bath towels under a door to block the draft and again appealed to NYGS.

“While you and every one at the guardianship are home in a warm house and having Thanksgiving dinner think of me. In a apartment without heat and can’t,cook. And rats in the kitchen,” she wrote on the evening of Nov. 21, 2018. “So much for where caring makes a difference.”

Three decades ago, New York was at the vanguard of a national movement to prevent such exploitation. State lawmakers passed progressive legislation to codify wards’ civil rights and maximize their independence. Under the law, guardianships were supposed to be tailored to the needs of the individual, with regular court examination to safeguard their welfare.

But today, the system is in shambles, leaving thousands of vulnerable New Yorkers sequestered, voiceless and forgotten while the officials who oversee their care struggle to ensure it, according to a ProPublica investigation. In New York City, there are just over a dozen judges to handle the 17,411 people in guardianships, data provided by the courts show. With that load, cases can sit for years without any kind of meaningful oversight. The hardest hit are poor New Yorkers like Zbiegniewicz, whom the state has entrusted to a network of loosely regulated nonprofits. The outcomes for some of these individuals — known in industry parlance as the “unbefriended,” because they have no family or anyone else to help them — have been dire.

In one case, a guardian didn’t notice his ward had died and continued to collect payments for the man’s care even after his death. In another, a guardian told the court in a report that they didn’t know where their ward was for a year. Case managers had visited her apartment but never went in. Eventually a utility worker discovered the woman’s corpse, covered in maggots, decomposing in her own bed.

That the 1990s reforms have failed has been an open secret for years among advocates, lawyers and judges, who have repeatedly called for an overhaul. But the state lawmakers and judicial leaders who have the power to improve it have not done so — even as cases like that of Britney Spears have brought national attention to the issue of guardianships.

ProPublica reviewed hundreds of pages of court records, interviewed dozens of lawyers and experts and talked to the wards who are least equipped to advocate for themselves. What we found is that some of the remedies that policymakers introduced 30 years ago to bolster care and curb abuse, like minimum qualifications for guardians and court examination of their reports, are in dire need of an upgrade.

Today, for example, it is far easier in New York to become a guardian than a nail technician. Parties need only complete a day-long course — far less training than is required in some other states, including California, Texas and Florida. And oversight of their work is similarly threadbare, consisting primarily of a court-appointed examiner who focuses almost exclusively on financial paperwork and a judge who signs off on the examination. But with thin ranks of reviewers, annual assessments can take years to complete. And officials rarely, if ever, see the wards in person.

The easy entry and lack of oversight, critics say, has helped attract unscrupulous nonprofits that take advantage of the wards they are supposed to protect.

In 2015, the chief financial officer of one nonprofit was convicted for stealing more than $50,000 from a ward’s accounts, government documents show. That same year, state regulators found that another nonprofit improperly loaned its top officials more than $250,000 while wards were unnecessarily kept in nursing homes.

Today, even those who helped write the state’s main guardianship statute, known as Article 81 of the Mental Hygiene Law, concede the yawning gap between its promise and its practice has rendered it, in the words of one, “basically pointless.”

“Keeping people out of guardianship in the first place is the single most important thing to do, because once you’re in it, it’s the toilet you get flushed down,” said Kristin Booth Glen, a former judge who helped craft the law and has called for reform for years. New York’s oversight of guardianships has been “a total and utter disaster,” she said.

Few groups illustrate the consequences of that failure better than NYGS, the organization that was supposed to care for Zbiegniewicz. Over the past decade, the company has grown to become one of the largest providers in the business, drawing $450 in monthly compensation each from hundreds of wards’ accounts while providing as few services as possible, according to court documents and six people familiar with the company’s operations, including former employees.

“Everybody is shirking responsibility,” said Carla Billini, the former director of case management for NYGS. She resigned last April after a decade in the job, saying she was fearful that the company’s practices would result in harm to wards. “How is there nobody above the guardian who watches all the guardians?”

A spokesperson for the Office of Court Administration, which runs New York’s court system, said that judges face “extremely challenging circumstances” but do the best they can under the law. “The caseloads are extremely high and individual cases can persist for decades,” he said. “Yet, the courts never give up in searching for solutions to ensure the well-being of some of society’s most underserved populations.”

NYGS executives declined to be interviewed for this story. In a statement, Sam Blau, the company’s chief financial officer, said that as a fiduciary he was barred from answering questions “about any specific client.” However, he noted, “we are accountable to the Court and our annual accounts and reports are scrutinized by Court appointed examiners and any issues would be addressed.” NYGS did not answer written questions about the company’s broader business practices.

In his statement, Blau called ProPublica’s reporting “misguided, without full and proper context, filled with omissions and less than accurate information.” But when asked to specify his concerns, he did not respond.

Zbiegniewicz’s decadelong experience as a NYGS ward serves as a road map to how Article 81 fails New Yorkers who are least able to protect themselves.

“Somebody’s Going to Come Help Me”

Zbiegniewicz’s introduction to guardianship came as it does for thousands of others in the city each year: through a call to the city Adult Protective Services program by someone concerned about her well-being.

It was November 2008, and Zbiegniewicz was struggling financially and emotionally. Her father had died suddenly from a heart attack a year and a half earlier, leaving her the family’s Maspeth, Queens, home — and, to her surprise, a reverse mortgage. The outstanding debt was $266,532.95.

Zbiegniewicz had no job and no way to pay. She had been dependent on her father all of her adult life, the result of an early trauma: At 18, she was raped leaving the subway on her way to work at Queens’ Welbilt Stove plant. Her world became small, as her devastated parents shielded her. She never sought therapy, never returned to work and rarely ventured beyond the comfort of her block.

Now, with the house in foreclosure, someone called the city to check on her. Adult Protective Services soon sent a psychiatric nurse practitioner, who diagnosed Zbiegniewicz with depression, anxiety and a dependent personality disorder. In a court petition, the city noted that she relied on food stamps and public assistance. With bills piling up, she had just $459.88 in her bank account.

So on a January day in 2010, to help Zbiegniewicz stave off eviction, a city lawyer walked into a wood-paneled courtroom in the state Supreme Court building in Queens and asked a judge to declare her an “incapacitated person” in need of a guardian to manage her finances and housing.

Zbiegniewicz, who declined to attend the hearing, initially welcomed the move. “I was in no condition right then and there,” she said. “I was all alone, no direction, no nothing. I thought, ‘OK, somebody’s going to come help me get focused and leave.’”

The judge granted the city’s request, setting in motion Zbiegniewicz’s spiraling journey into New York’s overloaded guardianship system, which now contains 28,619 people statewide, more than 60% of whom live in New York City. In most cases, a judge selects either a so-called lay guardian — family or friends who volunteer — or a professional guardian, usually a lawyer, which can be pricey. For the thousands of New Yorkers like Zbiegniewicz, who have no family and too little money to be worth a professional guardian’s time, a judge will choose from just under a dozen nonprofit groups, depending on the circumstances. In cases where Adult Protective Services is involved, that means one of three publicly-funded organizations.

In Zbiegniewicz’s case, the judge initially appointed the Jewish Association for Services for the Aged. Its mandate was narrow: stopping her eviction.

The guardian negotiated the sale of Zbiegniewicz’s family home, paid off the reverse mortgage and secured $92,000 for her in the deal. Once the money was placed in a special needs trust, JASA’s mission was complete. The judge then turned to the list of professional guardians to help Zbiegniewicz find new housing.

But the task was a challenge. Zbiegniewicz insisted on keeping her five beloved schnauzers and living with four longtime friends who’d supported her after her father’s death. The arrangement made her a tough tenant to place, and by July 2013 she’d faced eviction from two separate apartments where she had withheld rent until repairs were made.

Before long, Zbiegniewicz’s professional guardian wanted out.

Like many private attorneys in the system, she was working the case pro bono, and her petition to be replaced reflected a larger strain in New York’s system, which has long relied on such goodwill to handle guardianships of the indigent.

Private lawyers have “stopped taking cases in droves because they don’t want to spend the time,” Arthur Diamond, the former supervising guardianship judge in Nassau County, told state lawmakers in 2018. “And it can be an immense amount of time being a guardian for somebody who has Alzheimer’s and dementia, which many of our wards do.”

NYGS pitched itself explicitly to the courts as a solution to this problem. A lawyer for the group once wrote to a Queens judge in a letter obtained by ProPublica that the company “hopes to fill a need in the court system” by taking those cases in which a judge would otherwise have “a difficult time finding a suitable guardian willing to act.”

In a July 2013 hearing, Zbiegniewicz’s private guardian suggested NYGS take over her case because “they seem to have a significant amount of resources.”

Supreme Court Justice Lee Mayersohn OKed the switch, making NYGS the third guardian to handle Zbiegniewicz’s case in three and a half years.

Exploding Caseloads, Little Vetting

The guardianship bill state lawmakers passed in the early 1990s established the first training requirements for guardians before they can serve — generally a daylong class meant to ensure they have a baseline familiarity with Article 81’s requirements. That’s less stringent than what the state requires of prospective nail technicians, who must complete a 250-hour course and pass tests. This low barrier to entry can allow a family member who steps up to help a loved one in crisis quickly get in place. But advocates say that New York’s permissiveness also enables exploitative actors to enter the guardianship business.

At the time of NYGS’ founding, Blau was working as the director of judicial compliance at another guardianship firm, according to his LinkedIn profile. The state attorney general’s office investigated that group, Integral Guardianship Services, during Blau’s tenure, and eventually accused it of abandoning its most basic duties, including filing annual reports detailing wards’ finances. (Blau wasn’t named in the probe, which the group settled. The firm shuttered its operations last spring.)

NYGS’ chief operating officer — Blau’s older brother David — had been running an unrelated e-commerce business, selling discounted travel coupons, according to former employees.

Once certified, private guardians are required to attest that they haven’t been found to have violated any criminal, civil or professional rules. Nonprofits, however, undergo no such vetting. In fact, they are not even required to provide proof of their charitable status.

Had there been such a requirement, the courts would have seen that NYGS is not registered as a charity with the state attorney general’s office nor does it have tax-exempt status from the Internal Revenue Service, both agencies confirmed. Nevertheless, the company repeatedly represented itself as a nonprofit in its court filings and promotional material as it took on more and more cases, including Zbiegniewicz’s.

The distinction is significant. Nonprofits are exempt from court rules that cap the number of cases and the amount of compensation guardians can receive annually. Such operations can be lucrative. One estimate commissioned by the state attorney general in 2016 projected that a nonprofit guardian serving 400 low-and-no-fee wards could generate $1.2 million per year.

Sam Blau declined to answer questions about the company’s tax status, but said in a statement that “a large percentage of our cases are done completely Pro Bono,” which “is certainly in line with our mission to help people of minimal financial means.”

In pitching the firm to the court, NYGS’ lawyer painted a picture of an organization with a “cadre of knowledgeable and caring individuals” experienced in guardianships who used “state of the art records management technology.”

In reality, the Blau brothers operated out of a cramped second-floor office on Avenue J in Midwood, Brooklyn, that was strewn with stacks of government forms, old checkbooks and financial statements. For years, employee chats show, the cremated remains of a ward sat in a plastic bag on the shelf of a hallway closet, nestled in a plain white container the size of a shoe box. The “state of the art” technology it used to manage its caseload were actually Dropbox and Google Docs, former employees said.

David Blau

NYGS’s business grew rapidly by taking on dozens of new cases annually — a strategy that former employees said was intended to maximize profit on the $450 per month apiece it earned from most of its wards. But staffing didn’t keep pace with volume, and workers realized that in order to do the job well, the firm needed to take fewer cases and throw significant resources at the ones it already had.

That didn’t happen.

Sam Blau

In 2016, when the company had 167 clients, it employed two full-time case managers, internal records show. That was true the following year when the total caseload jumped to 248 and remained the case the year after that, when NYGS was responsible for nearly 300 wards. Two more employees were hired in 2018 to handle wards’ finances. Several studies, as well as states including Virginia and Colorado, recommend a 20-client limit to ensure proper care. New York, however, has no equivalent guidance, and at one point NYGS had 83 wards per staffer, according to internal records.

More recently, former employees said, the company outsourced key jobs to workers in the Philippines who were expected to address the complicated insurance, banking and health care needs of vulnerable wards from 8,500 miles away. One worker told ProPublica that she was so troubled by the lack of resources and ceaseless calls — she was responsible for dozens of wards every day — that she quit after six months.

For years, unless judges specifically asked, they had no way to know whether nonprofits they assigned actually had the bandwidth to take on new cases. It wasn’t until last fall that the state court system, using a federal grant, created a database so that judges and court staff can “better oversee the flow and nature and structure of guardianship cases,” the courts’ spokesperson said.

Within NYGS, complaints about the conditions, the lack of resources or a ward’s specific problems were usually met with silence, said Billini, the former director of case management. Sam Blau would just “stare into his computer when you’d tell him something he didn’t want to hear,” she said. “We called it the passive-aggressive stare.”

The former case manager, as well as other workers, said this dynamic would play out time and again after NYGS moved Zbiegniewicz into the upstairs apartment of 150-15 Yates Road, a two-family home in a dangerous section of Jamaica, Queens. It was seven miles and a world away from the spacious Maspeth house where she’d lived most of her life.

Blau did not respond to questions about Billini’s account. In a general statement, he disputed ProPublica’s reporting, which he claimed was based on “disgruntled former employees who have a clear biased agenda.”

Bedbugs, Rats — No Questions Asked

Zbiegniewicz suspected something was amiss with her guardian from the start.

Shortly after moving into the Yates Road apartment, she discovered bedbugs. She said she complained to NYGS immediately, but it took three months before the company sent pest control. The disruption caused her therapist to cancel weekly sessions until an exterminator certified the insects were gone, Zbiegniewicz said.

“I was tore up from the floor up,” she recalled of the bites.

In its filings to the court, however, NYGS presented Zbiegniewicz as thriving. In language that would repeat year after year, a company social worker who visited the home wrote that “Ms. Zbiegniewicz is oriented to person, place, and time,” described the frequency of her therapy sessions and the medications she took, adding that she “enjoys gardening and taking care of her dogs and roommates.”

To ensure the integrity of such reports, the system includes a layer of protection for wards in the form of court-appointed examiners. By law, these individuals — typically lawyers or accountants — are tasked with reviewing guardians’ reports to “determine the condition and care” and finances of the ward, as well as “the manner in which the guardian has carried out his or her duties and exercised his or her powers.” In practice, the scrutiny can be far from robust.

Today, there are just 157 examiners responsible for reviewing the reports of 17,411 New York City wards, according to data from the court system. And their training can be minimal. In Brooklyn, Queens and Staten Island, this includes viewing a set of instructional DVDs that were recorded 12 years ago.

Like the cost of the guardianship itself, the price for these examinations is borne by the ward.

Zbiegniewicz paid a few hundred dollars each year for an examiner’s reviews. But her records show these examiners did not interrogate spending that indicated potential housing problems.

In 2014, for example, Zbiegniewicz’s account listed four separate disbursements — totaling $1,251 — for extermination, laundry and cleaning services, all explicitly labeled as bedbug remedies. Yet when the examiner asked whether the housing was “best suited” to Zbiegniewicz’s needs, NYGS said it was “appropriate.” There’s no indication in the file that the examiner at the time, Paul Guttenberg, pressed any further or followed up on the extermination expenses. Guttenberg, who declined to be interviewed and didn’t respond to emailed questions, approved NYGS’ report.

The subsequent examiner of Zbiegniewicz’s case, Janet Brown, was similarly uncritical. Court data show she carried a significant caseload. Zbiegniewicz was just one of 44 new cases Brown picked up in 2015 alone — a pace that would continue throughout the guardianship. Each year, after reconciling the financials, she signed off on NYGS’ reports, including those that showed Zbiegniewicz paying to address more problems a landlord would typically be expected to cover: $180 for electrical work in January 2018, then $30 more for an electric stove that May and $50 for a heater in December.

That year, when Brown asked whether Zbiegniewicz’s apartment was “best suited to her current needs,” an NYGS employee responded, “It is not the ideal placement, but currently it is the best & only placement” for her.

The employee provided no further explanation in the filing, and there is no indication in the court record that Brown asked for one.

Meanwhile, the conditions in the apartment steadily worsened, according to emails, court filings and interviews with four other people who spent time there.

“Now the rats are eating the kitchen chairs,” Zbiegniewicz wrote to NYGS in a March 2019 email. “By the time I leave I will not have anything to take.”

That year, the guardianship reported spending $280 of Zbiegniewicz’s money for “storage containers and pest Control,” as well as “reimbursement for Extermination and Bathroom Repair.”

There is no indication in the court records that Brown even examined these 2019 expenses. While Article 81 requires guardians to file wards’ annual accounts by May of the following year, there is no such deadline for examiners. Zbiegniewicz’s file is still missing reviews for four years of her guardianship.

In an interview, Brown said that her job was to “make sure the dollar amounts balance out” and that funds were not “being misused.” By those standards, there were no disbursements in the annual reports that “raised an eyebrow,” she said. She said she wasn’t aware of the chronic heating problems, the collapsed roof or the pest infestations in the Yates Road apartment, despite the expenditures for extermination and various capital improvements in the reports she reviewed.

“I would have had no way of knowing that unless someone directly reached out to me and said, ‘Hey, this is a problem,’” she said.

Brown didn’t respond when asked why she didn’t file her reviews for 2019 through 2022.

Zbiegniewicz said that for years she had no idea that she could take her complaints to the examiner. When she finally did phone, she said, Brown conferenced in a NYGS employee and left the call.

Brown, who is no longer an examiner, said she didn’t recall that conversation, but that she remembered Zbiegniewicz was vocal about her desire to be released from the guardianship. Brown said that she believed she discussed that with someone at NYGS but she couldn’t recall with whom or what was said.

“I do genuinely care,” she said, “even if you don’t think so.”

Experts said the failure to conduct face-to-face check-ins could hide horrific situations. Judicial leaders, they said, can and should bolster examinations with home visits. For example, in Davidson County, Tennessee, which includes Nashville, social services workers visit wards, review their medical records and interview guardians and their doctors.

“You’ve got to visit the person,” said Booth Glen, the former judge who helped write Article 81. “Paper is not enough when human lives are at stake.”

With Judges, “Things Just Get Locked In”

Examiners are the main check on guardians, but judges also review examiners’ reports before signing off.

Zbiegniewicz believed that if Mayersohn understood how dire her living conditions were, he would require NYGS to fix the situation. The son of a state assemblymember, he started his career as a legislative aide and practiced law for nearly two decades, focusing on trusts and estates, among other civil matters, before being elected to the bench in 2004.

Judge Lee Mayersohn

What Zbiegniewicz didn’t know was how long it could take for information to get to the judge — and how long it could take him to review it. She is just one of 1,566 open guardianship cases currently on the judge’s docket, according to court data. Such a robust caseload, coupled with too few examiners, can add years to the oversight process, creating dangerous gaps in information in cases like Zbiegniewicz’s.

For example, in the spring of 2018, NYGS submitted its guardianship report for the prior year, as required by law. The paperwork contained numerous indications that something was wrong at Yates Road. Notably, no rent payments were listed for the apartment and the company acknowledged for the first time that the house was “not the ideal placement” for Zbiegniewicz.

But a full year passed before the examiner filed her review with the court, where it was eventually checked by clerks and then passed to Mayersohn for approval. In all, the entire process took more than two years. None of the parties raised alarms over, or even noted, the missing rent payments.

Had they dug deeper, they would have found that Yates Road had gone through a foreclosure and been sold to a bank that was moving to evict Zbiegniewicz and her friends. It’s unclear who actually owned the house when NYGS moved her there; the deed had changed hands multiple times in quick succession. During Zbiegniewicz’s first two years in the house, the guardian had sent $32,000 of its ward’s money to a firm run by a Queens entrepreneur who was later convicted of real estate fraud in an unrelated case. When the eviction notice arrived, NYGS stopped paying the rent but appeared to do little else.

“Phone calls to the guardian in an attempt to work out some sort of reasonable solution have failed since the guardian has refused to respond to any call,” an attorney for the new landlord wrote in a December 2017 court filing. The company eventually hired a lawyer to respond to the landlord-tenant action.

For more than two years, while the official reports on Zbiegniewicz’s welfare crawled through the court system, NYGS kept her in the home.

During that time, she endured all manner of horrendous living conditions. According to her emails to NYGS, she went long stretches without heat and rats ate holes through her clothes. When the apartment lost power, she and her roommates had to jury-rig the breaker box with a popsicle stick to feed electricity upstairs.

“You have to get in contact with someone,” she wrote to NYGS on Jan. 20, 2018, when her refrigerator lost power. “We are running extension cord from the basement to up stairs. We are hungry did not eat yesterday.”

When NYGS failed to act, Zbiegniewicz and her roommates complained to the city, triggering visits from building inspectors, who documented no running hot water and failure to supply adequate heat. That prompted the Department of Housing Preservation and Development to sue the new owner, who agreed to pay fines to settle the lawsuit.

It’s not clear just how much Mayersohn knew about these cases. The siloed nature of New York’s sprawling courts can leave guardianship judges in the dark about significant developments elsewhere in the legal system. That makes the guardian's report — and the examiner's review — even more critical for guardianship judges. But neither NYGS nor Zbiegniewicz’s examiner mentioned the escalating legal actions in their reports.

Mayersohn declined to be interviewed, saying judicial ethics opinions barred him from commenting on “any pending case in any jurisdiction,” and he didn't respond to detailed written questions about his handling of Zbiegniewicz’s case.

Within NYGS, staffers were growing increasingly concerned for Zbiegniewicz’s well-being and passed complaints along to David and Sam Blau, said Billini, the firm’s former case manager. A nurse practitioner for the company confirmed the deplorable conditions on her quarterly visits to the house and reported back to NYGS.

“Client remains angry and frustrated over her living conditions — roaches, mice and rats,” the nurse wrote in notes submitted to the guardianship in February 2019. “There is mold — breathing unhealthy. Would like things to move along.”

And yet, nothing changed, Zbiegniewicz said. (The Blaus did not respond to requests for comment on these claims.)

So in 2019, she started calling Mayersohn’s chambers. She phoned so frequently, she said, that the judge’s secretary knew her case number by heart. But the judge never talked to her when she called, she said. Like the examiner, the secretary sent Zbiegniewicz’s complaints back to the guardianship.

"Once a guardian is appointed, the court’s tendency is to just work with the guardian,” said Joe Rosenberg, who co-directs the CUNY School of Law’s Disability and Aging Justice Clinic. “I think it’s tough to get out of that cycle. And perhaps that’s in part because it’s hard to find another guardian. Things just get locked in.”

The demand for guardians is particularly great among elderly New Yorkers “who are alone, with no one to help, and few or no resources,” the Vera Institute of Justice, a legal reform nonprofit, reported in 2018. And so groups like NYGS fulfill the court’s “greatest need,” said acting state Supreme Court Justice Charles Troia during a panel discussion on guardianships in 2021. “We need agencies that are willing to help those that truly have nothing.”

Other judges, the courts’ spokesperson said, have advocated for structural changes, including replacing nonprofits with “a statewide, state-supported public guardian program for indigent persons.”

But for now, without such an agency to serve poor wards with considerable needs, judges have few other options.

Zbiegniewicz was better able to advocate for herself than wards who have severe health problems, but even she worried that her persistent complaints may have hurt her cause. She said she got the feeling that the judge and lawyers and court staff believed she was unstable and therefore easy to dismiss. “It used to drive me up a wall,” she said of the Article 81 designation attached to her name. “That is a badge saying that I'm cuckoo.”

“This Is My Life and I Want It Back”

After years of turmoil, David Blau notified the court in May 2019 that he had negotiated a resolution to Zbiegniewicz’s five-year-plus housing crisis: The bank would pay her $5,000 to leave Yates Road and NYGS would, in turn, place her in an assisted living facility.

Zbiegniewicz “suffers from a debilitating anxiety disorder and requires assistance with her finances,” Blau asserted in a court petition. The conditions, he argued, necessitated a higher level of care. Billini and other staffers inside NYGS disagreed. Zbiegniewicz and her court-appointed attorney did too.

In a June 2019 filing opposing David Blau’s petition, the attorney informed the court that Zbiegniewcz had already moved out of Yates Road on her own. That month she’d married her longtime friend Leonard Hubbard, and the couple were living together in a city shelter.

Nevertheless, Mayersohn ordered Zbiegniewicz to find proper housing and ordered NYGS to “support” her in that endeavor. But again, Zbiegniewicz said, the company failed her. She needed her financial records to apply for subsidized housing, but she said NYGS responded slowly to her requests or not at all. She managed to get the records on her own and worked with a social worker at the shelter to secure a new home, she said.

“I need to be in control of my own life and I can’t wait on you to do something, to give me paperwork, to give me this, or anything,” she told David Blau in an Oct. 29, 2020, voicemail. “This is my life and I want it back. Thank you.”

Listen to Zbiegniewicz’s Voice Message

On Oct. 29, 2020, Zbiegniewicz left this voicemail begging David Blau to release her from her guardianship.

Zbiegniewicz said she never heard back after leaving that message. And because the pandemic shuttered the courts, there were no appearances in her case for more than two years. She was in legal limbo, without any kind of oversight.

“These people do not care about you,” Zbiegniewicz said.

Eventually, she secured a one-bedroom apartment for herself, Hubbard and their new dog, Bogart, in a Long Island City building overlooking the East River for $905 a month. With a housing voucher and public benefits covering two-thirds of the rent, it’s far cheaper than the $1,350 she shelled out each month to live on Yates Road. Ironically, because of an oversight by NYGS, she was able to access her bank account to help pay rent.

Mayersohn finally released Zbiegniewicz from the guardianship in February 2022. In NYGS’ final report, the company disclosed taking $12,551 to cover “unpaid monthly compensation” for the nearly two and a half years she had effectively lived outside the guardianship. The lump sum payment brought the balance of Zbiegniewicz’s accounts to zero.

To date, nobody involved in her case — from NYGS to the examiners who approved the company’s reports — has been held to account. But there is still time for the judge to consider their actions.

Because NYGS failed to file the required paperwork to settle Zbiegniewicz’s account, her case technically remains open. A lawyer for NYGS finally filed that motion in January — two days after ProPublica first contacted the organization for comment on this story. The paperwork now awaits Mayersohn’s signature.

In January, Zbiegniewicz sent a letter to Mayersohn, describing the “injustice and mistreatment” she said she’d endured.

“All I would like is to be heard and for New York Guardianship Services to be held accountable for what they did and did not do for me,” she wrote.

Mayersohn’s secretary confirmed receipt on Jan. 31 but cautioned that, due to a significant backlog, it would take time to resolve her guardianship.

by Todd Wallack, WBUR

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. This story was co-published with WBUR.

Every night, Graciella Carter puts her 5-year-old son to bed with the same routine. She tucks Oscar under some blankets, kisses and hugs him, and stays with him until he drifts off to sleep, no matter how long it takes.

But nothing else is routine. They stay in a different place almost every night. The bed may be a sofa in a friend’s or relative’s living room anywhere in western Massachusetts. Carter usually has to sleep sitting up, at the end of the couch or on a nearby chair, leaning on her fist like a pillow.

Carter and Oscar have been couch surfing since being evicted from their Holyoke apartment in October. She said she fell behind on the rent because she’d been injured in a car accident and couldn’t work for several months. Oscar had to give away his beloved dog, a poodle-Chihuahua mix named Luna. When friends didn’t have room for both Carter and Oscar, she would sit by his side until he fell asleep and then spend the night in her car — until it was repossessed a month ago. Now she gets rides from friends or takes buses, hauling around a pair of laundry bags with their clothes and other necessities.

“It’s hard,” she said recently while playing with Oscar in a small park in downtown Northampton, 20 miles north of Springfield. “It’s just bouncing around.”

The 28-year-old, a high school graduate who has worked off and on as a certified nursing assistant, has been waiting for a state-subsidized apartment for nearly five years, since Oscar was a few months old. She has applied for state-funded housing in 11 cities and towns without getting a single placement, even though some of those communities have vacant family units.

To the disappointment of the Carters and other families desperate for refuge from the winter cold, the state failed to achieve its goal, proclaimed last September, to “significantly reduce” vacancies in state-subsidized public housing by Jan. 1. The “90-day push” followed an investigation by WBUR and ProPublica, which revealed that almost 2,300 state-funded units were vacant, despite a waitlist of more than 180,000 people. The findings came as the number of homeless families increased sharply, prompting Gov. Maura Healey to declare a state of emergency, which remains in effect.

Yet the 90-day initiative barely made a dent in the vacancy totals. According to the latest data available, the number of vacancies has dropped by only 72 since July. As of March 1, the figure stood at 2,219, with most of the decline occurring in the past two months after WBUR asked why the state hadn’t made more progress. More than three-quarters of the vacant units have been unoccupied for at least 60 days, the deadline that the state gives local authorities to fill a unit. Apartments that remain empty beyond that time limit need a state waiver or the local authority may face fines.

Vacancies in Massachusetts’ Public Housing Decreased by Only 72 Units Over Seven Months

The state had pushed to “significantly reduce” vacancies last fall, but it made little progress.

Source: The Massachusetts Executive Office of Housing and Livable Communities

The state also has not fixed key problems that contribute to vacancies, WBUR and ProPublica found. It still doesn’t screen applicants for eligibility when they first apply for housing, and it allows people to sign up in as many as 230 places, including towns too far away for them to realistically relocate to. Almost 13,300 candidates for priority status, which is largely reserved for people in dire need of housing due to situations like fires, domestic violence or a condo conversion, are still waiting for a vendor hired by the state to determine if they are eligible and potentially bump them up the list.

In most states, low-income residents seeking affordable apartments rely on federal public housing or vouchers for private housing. Massachusetts has those options, but it’s one of four states — the others are New York, Connecticut and Hawaii — that also offer state-funded public housing. The state’s 41,500 subsidized apartments are in high demand because Massachusetts has some of the highest housing prices in the country.

Until 2019, local housing agencies in Massachusetts were responsible for maintaining their own waitlists for the subsidized units. That year, the state created a central list with the aim of making it easier for people to find public housing. Instead, the system has become a bureaucratic quagmire.

The waitlist “is not going to get fixed with iterative steps,” said John LaBella, president of HousingWorks, a Boston company that helps people find affordable housing. “It needs a fundamental redesign.”

All the communities where Carter has applied for state-subsidized apartments are in western Massachusetts, and she would be glad to live in any of them. Agawam, a Springfield suburb, has a pair of three-bedroom units that have been vacant since 2021, along with seven empty two-bedrooms that would be suitable for the Carters. But the waitlist functions so ineffectively that the Carters and many other families have yet to receive offers.

When applicants reach the top of the list, Agawam’s housing authority notifies them, then spends hours verifying their information and reviewing their criminal backgrounds, income and references. Ultimately, most of them don’t respond, don’t qualify, or decline to move to Agawam. On average, Agawam vets hundreds of applicants to fill one vacancy, said Maureen Cayer, director of the housing authority there.

The continuing abundance of vacancies “is a failure,” Cayer said. “It’s a failure for the state. It’s a failure for the system. It’s a failure for the housing authority.”

Kevin Sbardella, director of the Fall River housing authority, similarly blamed the state’s centralized waitlist for the nearly two dozen empty units there. He said he wishes agencies could go back to using their own lists. “If I could just go local, I’d fill my vacancies up in a week,” he said.

After WBUR asked in February about the failure to fill more vacancies, state officials made a new set of promises to local housing directors. Ben Stone, director of the state division of public housing and rental assistance, pledged to track vacancies better and provide extra funding to help agencies reduce high vacancy rates. In an email to local housing directors, Stone said the state aims to cut the vacancy rate almost in half, to 3%. That would mean reducing the number of vacant apartments by nearly 1,000.

State housing officials didn’t set a deadline to achieve the 3% mark. They told WBUR that it is a “long-term” objective, and that the medium-term goal is getting under 2,000 vacant units. They said they have been tracking the number of vacancies since 2016, and 2023 was the first year that it declined. “I think we made a little bit of headway,” Housing Secretary Ed Augustus said in an interview.

Augustus said he was surprised to hear that local housing officials were complaining about the waitlist. He said they have told him the system has been working much better since the state hired an outside vendor last year to help screen applicants who requested priority to move up the waitlist.

“They’ve all told me they’ve seen improvements,” Augustus said. “Not perfection. Not every bug has been taken out of the system, but marked improvements.”

The contractor handling the priority review has screened out far more applicants than it has approved. As part of a three-year, $3.3 million contract, Archipelago Strategies Group, a Boston marketing firm, is working its way through a backlog of 45,000 requests to move up the waitlist. So far, it has approved 640 completed applications and denied another 1,435, according to state housing officials. They said the firm has discarded more than 30,000 other applicants because they withdrew, did not respond to requests for more information, or were deceased or otherwise no longer eligible. Most of the applicants approved by Archipelago for priority are still waiting for housing offers, according to the state.

Archipelago has sifted through more than two-thirds of the priority requests, and it is “helping the most vulnerable applicants move forward as quickly and fairly as possible,” said Josiane Martinez, the company’s chief executive officer. “Our centralized screening is saving housing authorities thousands of screening hours, which they can now use to finalize housing placements.”

One priority applicant Archipelago rejected was Carter, the homeless mother in western Massachusetts. One reason she gave for seeking priority was that her injuries made it difficult for her to climb the stairs to the second-floor apartment where she and Oscar had been living. “Your documents show that the Primary Residence was not the impediment to your health,” Archipelago wrote her on Oct. 12. Once she was evicted, she remained ineligible because nonpayment of rent is typically considered the tenant’s fault. To receive priority, applicants must show they lost their housing through no fault of their own.

Carter has been waiting for a state-subsidized apartment since Oscar was just a few months old. (Jesse Costa/WBUR)

“I have a 5-year-old, it’s winter, how does that not make someone a priority?” Carter said. “I don’t care about anything other than finding somewhere to stay.”

Waitlist woes aren’t the only reason for vacancies. More than 100 apartments have been repurposed for uses such as offices, storage or laundry. Hundreds more need major renovation. Augustus said he’s asked his team to make sure there are good reasons for taking such units offline.

Last fall, Healey proposed a bond bill that includes $1.6 billion in funding for capital expenditures in public housing, more than double the previous allocation. The funds would help renovate hundreds of uninhabitable or rundown apartments. But the Legislature has yet to approve it. Augustus estimated that the state has “over $1 billion worth of requests in the pipeline” for public and private development from local housing authorities.

One stalled project is in Fall River, where the state approved an $8 million grant in 2020 to rehab 40 apartments, about half of which are vacant. But the state has yet to sign off on final plans, so the authority can’t seek bids or start construction. One unit has been empty for almost eight years.

“That’s been just moving at a snail’s pace,” said Sbardella, who runs the Fall River housing authority.

A spokesperson for the state housing agency said it agreed to reimburse local housing authorities for $1.5 million in minor repairs and staff overtime during the state’s push to fill vacancies last fall. But some local housing directors said the 90-day window for funding was too short for them to learn about the program, line up workers and win approval from their boards.

“I need a solid four to six months at least,” said Paula Mountain, executive director of the housing authority in Wenham, 25 miles north of Boston. She was only able to take advantage of the offer for two months, she said.

Cayer, in Agawam, said she didn’t tap the money because her state liaison couldn’t explain where it was coming from and what strings, if any, were attached. Stone told housing directors in February that the state plans to extend portions of the aid beyond 90 days.

Meanwhile, Carter and her son are still waiting and hoping to find a place to live. Although Carter has largely recovered from her car accident, she said she had to quit a recent job as a medical assistant because she didn’t have reliable child care or a home to invite a sitter to. She’s separated from Oscar’s father, who is not currently providing any financial help, she said.

In the Northampton park, she watched Oscar leap over a stump, then chased him across the wet grass and spun him around on a carousel.

“You want to spin?” she asked him. “Are you sure? OK, tell me when you have a good grip. You ready?”

Oscar can’t ride his bike or play with his toys at the park; his mother had to put them in storage. Instead, after playing with her and riding the carousel, he entertains himself by collecting sticks.

by Eric Umansky

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

The federal Department of Education has announced a historic $14 million fine against Liberty University for failing to properly handle reports of sexual assault and other campus safety issues.

Universities are required by law to support victims of violence. The Education Department found that the Christian evangelical Liberty University had fundamentally failed to do so. Sexual assault victims were “punished for violating the student code of conduct,” the report concluded, “while their assailants were left unpunished.”

The government found that Liberty’s actions had created a “culture of silence.”

The findings, which the department announced Tuesday, echo a ProPublica investigation that detailed how officials had discouraged and dismissed women who tried to come forward with accounts of sexual assault. Women who went to school officials to report being raped recalled being threatened with punishment for breaking the university’s strict moral code, known as “The Liberty Way.”

The coverage prompted widespread outrage, including demands from senators for a Department of Education investigation.

That investigation culminated in Tuesday’s announcement. The fines against Liberty are more than double the amount of the next-largest fines in Department of Education history — against Michigan State University for its failures to protect hundreds of women and girls from sexual abuser Larry Nassar.

Liberty will also face two years of federal oversight.

Elizabeth Axley, a former Liberty University student who was threatened with punishment when she reported her rape to campus officials, said the government’s findings against Liberty feel “so validating and sort of surreal.”

“For an official report to say, ‘Yes, everything you said happened, everything you described was real,’ is more powerful than I can describe,” said Axley, who recalled that when she first wanted to report her rape, a resident adviser told her to pray instead. “After I first fought to stand up for myself at Liberty, I was silenced. I didn’t feel hopeful. It took everything for me to stand up to tell my story again and hope it turned out right. This reminds me it was completely worth it.”

In response to the government’s report, Liberty University said in a statement that it faced “unfair treatment.” But the school also admitted to mistakes and committed to spending $2 million to improve campus safety.

“We acknowledge and sincerely regret these errors and have since corrected them in a manner that allows us to maintain compliance in each of these areas,” the school said. “Today is a new day at Liberty University. We remain committed to prioritizing the safety and security of our students and staff without exception.”

Liberty University was co-founded in 1971 by the televangelist Jerry Falwell. His son, Jerry Falwell Jr., took over the university’s helm in 2007 but resigned in 2020 after a series of scandals. With more than 90,000 students enrolled on its Virginia campus and online, Liberty remains one of the most influential Christian universities in the country.

S. Daniel Carter, who helped craft the Clery Act, the federal law that requires schools to report sexual assault and other crimes, said the significance of the Department of Education’s actions go beyond the record fines. “It’s not about a bottom line number,” Carter said. “It’s about the fact that they are proactively investigating and leading efforts to bring schools into compliance.”

Hannah Dreyfus contributed reporting.

by Megan Rose

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

Returning to his home state of Utah, where more babies are born with cleft lip and palate than is typical, Dr. Devan Griner made plans to open his own practice, joining the small cohort of plastic surgeons nationwide who treat the condition.

As he recruited doctors to fill out a team in 2017, Griner had lunch with an orthodontist who’d long worked in the state. He quizzed Griner on his credentials and then turned to bone grafting, a common procedure for cleft patients, who are often missing a piece of their upper jaw. Sitting back, the doctor looked hard at Griner and lobbed a test question: At what age would Griner do bone grafts on patients?

It was a surprising question. There is broad consensus nationwide to time bone grafts to when a patient is getting certain adult teeth, and so Griner, a bit taken aback, replied that of course he does it then. That’s when Griner said the orthodontist relaxed, leaned in over their Neapolitan pizza and declared, “We have a bone grafting problem here in Utah.”

Almost immediately Griner encountered it for himself. Patients began turning up who’d had treatment that departed from the standard of care in ways Griner found alarming. In many cases, he felt they’d had, or been advised to undergo, grueling, and possibly unnecessary, facial surgeries earlier than his profession advised. And they were all treated at Primary Children’s Hospital in Salt Lake City.

As more former Primary Children’s patients sought out Griner’s team, the doctors started to question among themselves, and then with other cleft doctors in the state, whether they needed to do something. It’s a rare and risky move to call out a fellow doctor’s work, much less a team at a well-known hospital. Most children born with a cleft in the five-state region around Utah are treated at Primary Children’s, some traveling the farthest distance for care in the nation. It’s the largest pediatric hospital in the area, and for many, it had been the only choice.

A crucial question emerged: Did the hospital’s patients, and their anxious parents, know that the care they were getting at Primary Children’s was different from what cleft surgeons at top hospitals around the country provided?

The question hit at the heart of a common tension in medicine between the sort of innovation that drives life-enhancing advances and the accepted standard of care, which is informed by peer-reviewed medical studies, broad agreement among specialists and insurance company policies. What information are patients, especially children, owed? And how should regulators respond when doctors want to try something new — especially when doctors, and their choices, may be geographically or otherwise isolated from their peers?

Dr. Devan Griner, a plastic surgeon, at the Cleft and Craniofacial Institute of Utah in Provo (Hannah Yoon, special to ProPublica)

In the case of cleft lip and palate, the future of children’s faces are on the line. The success of some cleft procedures isn't fully known until a child has finished growing. Although there can be signs along the way, not until cleft patients are almost adults will doctors be able to fully assess if a certain treatment done at 2 years old was ultimately beneficial or harmful.

Griner’s team and other doctors who’d worked in Utah eventually felt they had to take collective action. A group of nine doctors decided to file a formal complaint with the state, saying “this is about protecting children.” Among their allegations: Some doctors on the hospital’s cleft team were performing bone grafts on patients who were too young — around age 2 — and using an off-label, controversial bone growth product that many doctors shun. They were performing intensive jaw surgeries — which require children to wear a large metal device screwed into their heads for months — so early that they risked some children needing to repeat the operation. And the team was performing surgeries some patients didn’t need.

“They just over, overoperate,” said Lisa Morris, one of the cleft doctors on the state complaint.

Cleft specialists at seven large pediatric institutions around the country, including Seattle Children’s Hospital and Nationwide Children’s Hospital, told ProPublica that the way doctors performed several procedures sharply departed from their speciality’s most common practices.

Utah’s Division of Professional Licensing is investigating the practices of several doctors on Primary’s cleft team, which is staffed by University of Utah doctors. The state agency originally closed the complaint with little investigation, but after an appeal to the head of Utah’s commerce department, which oversees licensing, the division reopened it in April.

Dr. Dana Johns, director of Primary Children’s cleft team, said the fact that her team’s practices don’t align with those of her colleagues in the field “doesn’t mean that different is wrong.” She said that intervening earlier helps protect children with visible facial differences from a gamut of bullying in their formative teen years.

In interviews, both Primary Children’s and the University of Utah told ProPublica they stand by their protocol and fully inform their patients during appointments about how and why their care differs. What the team does is “clinically defensible and potentially advantageous,” Kathy Wilets, a University of Utah Health spokesperson, wrote in a statement.

But ProPublica’s questions, the hospital said, prompted the hiring of two independent cleft surgeons to formally review the protocol. Bioethicists have also reviewed the hospital’s informed consent procedures, leading administrators to make changes to its cleft consent policies and consider hospitalwide changes.

Dr. Jay Agarwal, the hospital’s chief of plastic surgery, said the cleft team believes the standard methods of treating cleft lip and palate aren’t good enough and is trying to advance care by fixing children’s mouths at younger ages and in ways that could eliminate the need for surgery when they’re older.

“We always have to try to do better,” he said.

But parents of some of Primary Children’s patients say their children were unwitting participants in what the hospital calls innovation and what some other cleft experts deemed a potentially risky deviation from evidence-based treatment. Experts said bone grafts done at such an early age could stunt facial growth, resulting in the upper lip looking pushed back and impairing basic tasks such as talking and chewing.

The final results of the early bone grafting won’t be known for years. Patients treated under the new bone-grafting protocol Primary Children’s started around 2017 won’t start seeing full outcomes until around 2029.

Emily Rogers still feels the burden of remorse six years after her son’s bone graft when he was 21 months old. She, like members of several families ProPublica spoke with, said the former head of the program didn’t tell her that bone grafting at that age was unusual, that the hospital was just starting to try it or that doctors weren’t sure how her son’s face would grow after the procedure.

“It’s sickening to find out later you put your kids in their hands and they lied to you, basically,” she said. “That’s what it feels like: It was a lie.”

Gavin Rogers, 7 sits with his mom, Emily Rogers, at their home in Farmington, Utah. (Hannah Yoon, special to ProPublica) The Standard of Care

From the time a cleft is spotted on a sonogram during pregnancy, parents begin prepping for a series of surgeries to help their child with a noticeable facial difference. Each step of care throughout childhood builds upon the last, slowly marching the face toward the form it failed to take in the womb. A doctor’s misstep can veer the mouth off course or mean more surgery.

People unfamiliar with clefts, besides perhaps what they’ve seen on Operation Smile fundraising commercials, tend to think of the treatment as a one-and-done surgery to repair a small slit in the lip. And while that can be the case, for a lot of babies born with the condition, it’s much more involved. Often, a wide split starts at the nostril, goes down the lip, runs through the upper jaw and continues back through the roof of the mouth toward the throat. Sometimes there are splits on both sides of the mouth.

Cleft lip and palate together affect about 1 in 1,600 babies in the U.S.; around 2,500 are born with both each year. It is unclear why Utah has a higher rate. In general, the cause of a cleft is not well understood. According to the Centers for Disease Control and Prevention, there is some evidence that genetics can play a role, and some environmental factors, such as smoking during pregnancy or taking certain medications, can increase the chances of a cleft forming, which happens in the first trimester.

With cleft lip and palate, often a split starts at the nostril, goes down the lip and through the upper jaw, and continues back through the roof of the mouth toward the throat. Sometimes the split is on both sides of the mouth. (Illustration by Matt Twombly for ProPublica)

A cleft can affect a child’s teeth, position of the midface and nose, and ability to hear, breathe, swallow and speak. Many cleft patients need care from a range of specialists from their earliest days until adulthood. Successful cleft treatment repairs those issues, leaving patients’ faces with little evidence of their cleft issues by the time they are grown.

Like most well-known conditions, there is a treatment plan for cleft lip and palate that a majority of doctors follow, known generally as the standard of care. ProPublica spoke with more than a dozen cleft specialists nationwide, and all acknowledged the variability, subjectivity and debate in cleft care. Several pointed out there aren’t large randomized trials that have definitively provided answers, and care continues to evolve. Still, they all laid out the same general timeline of cleft treatment and the reasons for it.

Doctors usually repair the lip and nose around 3 to 6 months, close the palate around 9 to 18 months and then wait to do a bone graft until children are about 5 to 11 years old, though there is debate about when in that age range is best. Jaw surgery, if needed, typically waits until the child is done growing. Most patients will need rhinoplasty and years of orthodontia as well and, in some cases, additional surgeries to help with things like speech.

Richard Kirschner, chief of plastic and reconstructive surgery at Nationwide Children’s in Ohio and the editor of a widely used cleft textbook, said this timeline is based on evidence collected over decades in the care of thousands of patients.

To the doctors at Primary Children’s, the skepticism they’re facing is the plight of pioneers.

“I think it’s easy to keep doing things the same way in the way they’ve always been done,” said Agarwal, who noted that he doesn’t think there is a standard of care in cleft. “And, you know, that’s the answer for a lot of groups that they feel like they don't want to try new things. And that’s OK. I mean, nothing’s wrong with that.”

Dr. Dana Johns in an exam room at Primary Children’s Hospital (Kim Raff, special to ProPublica)

Faizi Siddiqi, who helped start the university’s cleft team in 2003, stopped practicing last year and died from cancer in January at age 58. ProPublica was unable to reach him for comment before his death. Duane Yamashiro, an orthodontist who was the medical director of the cleft program for almost 20 years, declined through a spokesperson to comment. So did the most senior plastic surgeon currently on the team, Barbu Gociman. All three are named on the state complaint. Johns and the rest of cleft team doctors are not named on the complaint, and the hospital and the University of Utah declined to comment on it.

“We stand firmly behind our surgical approaches and believe they deliver the best outcomes for our patients, although, through an extensive review of our program we realize there are opportunities to improve the way we communicate with our patients and their families,” Wilets said in a written statement. “The safety and care of our patients is the most important thing to us.”

“We apologize for any distress to any patient family who feels we didn’t meet their expectations and did not feel comfortable addressing their concerns directly with us,” Wilets wrote.

The hospital has around 700 to 800 cleft patients at any given time, and Wilets said its cleft outcomes are in line with or better than other centers’.

In responding to concerns that patients’ families told ProPublica about, Jess Gomez, a hospital spokesperson, wrote, “We have no record of prior complaints from the families you’ve identified regarding their care, and we are saddened to learn of the concerns you’re sharing with us.” He added that the patients were cared for by Siddiqi, so the hospital is unable to respond to specifics about treatment discussions.

Innovating in surgery is a gray area. Unlike drug development, which has strict rules, surgeons are allowed wide leeway to try new things. “It’s a little bit of the Wild West,” said Dr. Jonathan Marron, director of clinical ethics at Harvard, and there isn’t agreement on what the right balance is between supporting innovation and protecting patients.

Doctors have an ethical obligation to make sure their patients are aware of how their protocol differs and what the rationale is for not doing the standard. “Informed consent, in my mind, is an important aspect of this,” he said.

As more and more doctors stick to a standard, the less acceptable a deviation from that standard practice is, Marron said. But figuring out where that line is can be difficult.

Innovating in surgery is not an area that’s robustly regulated. Last year, Utah lawmakers made it easier for doctors to practice outside the standard by loosening the rules that had restricted it, though the law still requires that patients are informed in writing and consent. The hospital and University of Utah didn’t respond to questions about whether patients are informed in writing about any deviations from the standard of care. Since ProPublica began reporting, the hospital has updated its written informed consent form regarding families’ options, Wilets said, and it now “more explicitly” tells patients that there is no standard protocol for cleft patients and different institutions have different protocols.

In other parts of the world, cleft lip and palate care has undergone changes based on government oversight. For example, in the United Kingdom there used to be many cleft centers with wide variations in success. Then the government audited outcomes, looking at factors such as how well patients were able to speak and how well their jaws aligned. Some centers achieved much better results with fewer surgeries. The government consolidated care among fewer centers to improve results and consistency. There isn’t any similar oversight in the United States.

“I think the important thing to understand here is that there’s not a whole lot of regulation in terms of who is looking after clinical outcomes,” Kirschner said. “And so it’s really [left] up to parents to do their research.”

An Outside Doctor

When Griner questioned the parents of the former Primary Children’s patients, he said, none of them understood that the treatment their child had received wasn’t the norm. The parents cycled through shock, anger and grief in his office so often that eventually he could tell by their faces what they’d say next, he said. The remorse stage was the hardest to hear, with parents blaming themselves for not asking more questions.

The parents, dogged by inchoate worries, had come to him seeking a second opinion once Griner and his partners opened their practice, he and some patients said.

Griner, who remembers going door to door to fundraise for Primary Children’s as a child, said he’d always believed that the hospital’s general excellence included the cleft team. He had wanted to work there. But Griner says that after he chose a fellowship position in Texas instead of with the University of Utah, relations soured.

Later, after seeing the unit’s handiwork firsthand in his practice, he took his concerns to the hospital’s administration. During 2018 and 2019, he said, he had three conversations with different levels of leadership, including the hospital’s then-CEO, about the poor cleft outcomes he and others were seeing. Each time, he said, his concerns weren’t taken seriously.

A spokesperson for Primary Children’s said the former CEO and another administrator couldn’t recall any such conversations, and the third, a director of surgical services at the time, said he recalled only casual conversations between colleagues. “If a concern were adequately raised by Dr. Griner, the concern would have been investigated and necessary action would have been taken,” Gomez said in an email.

As Griner’s new cleft team settled in, their worries mounted. Once a month, the cleft team would meet with patients to collectively discuss next steps. After a former Primary Children’s patient would leave one of those meetings for the first time, the doctors said they would look at each other, shaking their heads: “Can you believe that?”

Griner checks the teeth of Robbie McFerson, 4, while his mom, Sarah McFerson, holds him at the Cleft and Craniofacial Institute of Utah in Provo. (Hannah Yoon, special to ProPublica)

Primary Children’s undertakes two surgeries to repair the palate instead of one, something most doctors in the United States have stopped doing. The hospital is unusual in that it uses a prosthetic device to cover the palate hole, which requires more time under anesthesia when swapped out for a new one. The hospital also often surgically expands the palate of young patients when a retainer-like device would typically be used instead.

To Griner and his team, the timing of two major procedures — bone grafting and jaw surgeries — were worrying enough on their own, but along with other ways Primary Children’s is an outlier, they were concerned that patients were getting aberrant care at many stages.

Finally, in 2022, a group of doctors — many of whom compete with Primary Children’s — raised the issues with the state. Ten doctors’ names appear on the complaint, though one told ProPublica that although he agreed with many of the concerns, he wasn’t aware he’d been included on it.

(One of the plastic surgeons who signed the complaint, Rodney Schmelzer, has a complicated history with Primary Children’s. He lost his privileges there in 2017 and has two ongoing lawsuits against the hospital, one of which also names Yamashiro and Siddiqi. The hospital and the doctors have denied the allegations.)

Utah’s Department of Commerce, which oversees the Division of Professional Licensing, said it could not confirm nor deny an investigation.

The complaint alleges that Primary Children’s doctors “routinely exploit Cleft Patients and their families by … subjecting [them] to excessive numbers of surgeries outside the standard of care” without being honest about the risks, benefits or alternatives, which the doctors say violates medical ethics and Utah law.

Major Jaw Surgeries

Paige Holland started looking for a second opinion when Primary Children’s said her 7-year-old son would next need major jaw surgery to correct the underbite that commonly afflicts cleft patients.

The operation, called a LeFort distraction, sounded medieval to Holland: Doctors would cut part of his upper jaw from his skull and screw a rigid metal device, called a halo, to the outside of his head. Wires would attach his upper jaw to the device, and every day for weeks Holland would turn screws to tighten the wires and slowly pull her son’s jaw bone forward and allow more bone to grow. He’d wear the halo for months.

The LeFort Halo Procedure Initial jaw alignment: Cleft patients often have severe underbites. This can affect how the face looks and can also impact basic functions, such as chewing. Surgical procedure: Doctors make cuts along the upper jaw so it can be repositioned. LeFort device attachment: Doctors screw a rigid metal device, called a halo, to the outside of the head and attach it to the upper jaw. After the surgery, patients tighten the wires daily to pull the jaw forward over the course of a few weeks. New bone grows, lengthening the jaw. The child wears the halo for several months to allow the bone to heal. (Illustrations by Matt Twombly for ProPublica)

Jaw surgeries aren’t unusual for cleft patients, but the age Primary Children’s often does them makes the hospital an outlier. Holland’s son would have been as young as 9 at the time of the surgery, according to his Primary Children’s medical records reviewed by ProPublica.

The American Cleft Palate Craniofacial Association guidelines state that “whenever possible, [jaw] surgery should be delayed until physical maturation is essentially completed.’’ Cleft doctors at six leading hospitals said they don’t perform jaw surgeries until children stop growing. For girls, that’s about 14 to 16 years old; for boys, it’s closer to 18.

Until recently, Primary Children’s website told families to expect possible jaw surgery between 9 and 10 years old. But it has since changed the age range to between 9 and 15-plus. Some other cleft centers also perform early jaw surgeries, and Kirschner told ProPublica he thinks that surgeries performed before maturity fall within the standard of care, though he personally waits for patients to be grown.

Primary Children’s data from 2020 showed that the average age of LeFort halo surgery there was 11.4 years old, according to a paper published by the hospital’s cleft team that analyzed nearly 60 cleft patients who had halos over a three-year period. The age of the patients ranged from 8 to 16 years old.

Cleft doctors ProPublica spoke with said they perform jaw surgery before maturity in only a tiny proportion of cases, usually only if medically necessary. Dr. Roberto Flores, head of the program at NYU, estimated the number at no more than 5%.

At Seattle Children’s Hospital, even in those extraordinary cases, the surgery would not happen until 12 to 14 years old, when most of the adult teeth are finished coming in, according to the hospital’s former chief of craniofacial surgery, Richard Hopper.

“I’ve been with the cleft team for 20 years, and I can pretty conclusively say we haven’t done a Lefort … on a patient younger than 12 years old, 11 at the earliest,” Hopper said last year before he took a job with Texas Children’s Hospital.

“The earlier you do a jaw surgery, the more likely you’re going to have to repeat it later,” a cleft team surgeon at a top-rated pediatric hospital said. “Basically you’re committing kids to having an extra operation.”

The best practice, many doctors said, is to do one definitive jaw surgery close to adulthood.

“It’s a brutal enough operation. You wouldn’t want to have to do it twice,” a leader in the field said. Both doctors asked not to be identified out of concern it would jeopardize relationships within the small community of doctors who provide cleft care.

Primary’s Johns said such critiques ignore the psychosocial issues children with cleft deal with. Bullying should be given more weight in treatment plans, she said, and repairing a child’s differences before high school has merit. Most of her surgeries wait till at least age 12, she said, and when she does them on younger patients, it’s for either psychosocial or other pronounced medical problems.

Dr. Trace Lund checks Robbie’s palate and teeth. Children with cleft lip and palate often have extra or missing teeth, or teeth that emerge in the wrong spot. (Hannah Yoon, special to ProPublica)

Moreover, patients who wait until maturity can sometimes require extensive operations involving both the upper and lower jaws, Johns said. Patients who’ve had the surgery young might require a second jaw surgery, she said, but it would involve only the upper jaw. The trade-off, she said, is worth it.

Rohit Khosla, surgical director of the cleft team at Stanford Medicine Children’s Health who trained Johns during her fellowship, reviewed all of the hospital’s protocols at her request. In general, Khosla told ProPublica that he thought the hospital’s methods were controversial but not problematic. He found several problems with the cleft team’s study designs and conclusions, but overall its “protocols are conscientiously thought out with [a] goal to provide a high level of care,” he said in a summary of his report. The hospital would not share his full written review and asked Khosla to stop speaking with ProPublica once it was completed. Primary Children’s also set up a double-blinded review — neither the hospital nor reviewer knew whom the other was — to further assess its protocols, but the hospital said it would not make the report public when it was completed.

In looking at the hospital’s latest LeFort data, Khosla wrote that in the “last few years” the average age has increased to 14, “which I find more acceptable.”

On a Facebook page for Utah parents of children with cleft, numerous posts over the years speak to the hospital’s push to perform LeForts young. Some talk about how their children endured the surgery before 10 years old — “not going to lie the Halo is tough!” one mother wrote — and needed to repeat a jaw surgery as a teenager.

Holland said she thought there had to be another way to fix her son’s underbite and asked about braces. After Primary Children’s said there wasn’t, she said, she sought a second opinion with Griner, who sent him to an orthodontist instead. Holland’s son was one of at least seven former Primary Children’s patients whom Griner said he diverted from having surgery before maturity. None of them, in Griner’s opinion, had any medical necessity for the operation before maturity or reported bullying or other psychosocial issues. Schmelzer, who also signed the complaint against Primary Children’s, said his medical records showed similar numbers.

Griner recalled one startling case last summer in which Primary Children’s had lined up surgery for a 9-year-old child whose jaw was nearly normal. An independent plastic surgeon who specializes in cleft at a large academic institution reviewed the patient’s CT scan for ProPublica and confirmed Griner’s assessment that there was no need for surgery.

Holland’s son, now 13, has only a minor underbite after orthodontics and likely won’t need jaw surgery at all.

“He’s totally fine,” Holland said. “He was saved from a major surgery.”

Experimenting With Bone Grafts

About seven years ago, spurred by what Johns said was a “hypothesis we had,” Primary Children’s cleft team began experimenting with how surgeons bone grafted the upper jaw.

Without putting in place the protections of a formal research study, Johns and her colleagues decided the invasive surgeries could be done successfully when children were years younger — age 2 — than was standard practice in their field.

The “gold standard” for a bone graft is to use a piece of the child’s own hip. At 2, a patient doesn’t have enough bone to harvest. So over a period of about two years, Primary Children’s tested in its toddler-age patients different combinations of materials that would create a lasting bone graft.

Among the materials was a controversial product called bone morphogenic protein, or BMP, which stimulates bone growth. The BMP is put into the jaw where the child is missing bone and, in theory, spurs the body to naturally make bone, gradually filling the gap.

Some cleft doctors have hailed BMP as a less invasive way to treat patients since it first came to market in 2002 — but Primary Children’s believed it could be used in children years younger than their peers at other centers.

The parents of several patients told ProPublica they were never informed that their child was undergoing an untested procedure. In some cases the bone graft failed, necessitating a repeat of the painful operation.

In 2017, Gavin Rogers, 21 months old with the wispy blond hair of a baby, had bone graft and hard palate repair. Afterwards, “he was screaming all the time. He wasn’t sleeping, wasn’t eating. I had to squirt milk into his mouth,” his mom, Emily Rogers, recalled.

Gavin at 21 months, after his bone graft at Primary Children’s Hospital in 2017. His parents said they weren’t told that a bone graft at that age was unusual. (Courtesy of Emily Rogers)

Primary’s decision to use BMP in toddlers was a risky bet. In 2015, the U.S. Food and Drug Administration issued a safety warning about using BMP in children. The warning said that BMP hadn’t been approved for children “because their bones may still be growing and using this product may cause serious injuries.” The FDA action followed revelations of injuries, including alleged deaths, related to the use of BMP in spine patients. BMP’s maker was subjected to a congressional investigation and paid hundreds of millions to settle civil suits.

The FDA recommended against routine use in children and told doctors to be sure to inform parents about the risks.

Doctors are allowed to use products like BMP for so-called off-label purposes and commonly do, often to the benefit of their patients. In 2017, Dr. Jeff Hammoudeh, a plastic surgeon at Children’s Hospital Los Angeles, published one of the largest studies of BMP in cleft patients and found that over nine years of use its safety and success was comparable to using bone from the child’s hip. But the average age of his patients was 11 and his youngest patient was 6. He said he wouldn’t use BMP in patients any younger than that because of concerns, shared by other experts, about the long-term growth of a child’s face and questions about the safe amount to use in a child of that size.

Johns, of Primary Children’s, said that Hammoudeh’s study was one of the reasons her team felt confident in using BMP.

Hammoudeh said doctors need to be up-front about what they are doing and build in clear guardrails. When he experimented with performing lip repairs in newborns, he did so through a supervised research study. Parents, he said, were given the choice to have the traditional protocol, just as they were for bone grafting with BMP.

Some doctors may eschew the word “experiment” when trying out a new protocol, he said, but that’s what it is — even if they deem it “innovation.”

“You can soften the terminology any which way, but if you don’t know what the results will be, you don’t know what the results will be,” he said.

Johns told ProPublica she doesn’t offer parents the choice to have a bone graft at the traditional age because she’s confident that her way is better. Giving them the option, she said, “means that we’re telling them, ‘OK, we’re going to allow you to have subpar results.’”

Johns said that since as early as 2018, the parents of patients have been told that the new protocol is superior to traditional care, a claim she said is supported by observational results from the team’s first patients.

The Rogerses and other parents who spoke with ProPublica said Siddiqi, the lead plastic surgeon at the time, led them to believe that grafting at toddler age was the standard of care.

“One hundred percent,” said one mom, whose daughter was not yet 18 months at the time of the procedure and had to repeat the surgery later. She said the conversation with a reporter “was the first I’m hearing this isn’t typical.”

After his surgery, Gavin happened to see a new doctor outside the hospital. Rogers said she stopped breathing when she learned that around the country, many doctors time bone grafts to when certain adult teeth come in. Gavin still didn’t have all his baby teeth.

And the bone graft didn’t work. Gavin faces a second bone graft surgery this summer at 8 years old — in the age range when most other doctors would have done it the first time.

Gavin lies on his bed at his home in Farmington, Utah. He’ll need a second bone graft surgery this summer. (Hannah Yoon, special to ProPublica)

Four years after Primary Children’s started the protocol, the hospital did its first formal study — a review of 14 patients’ medical records. From around 2017 to mid-2019 — when Johns was telling patients the protocol was a success — the cleft team used different surgical techniques and a combination of bone products, including the BMP, that proved unreliable, and some patients needed additional grafts, according to the study and a university spokesperson.

A hospital spokesperson said its bone grafting procedures have advanced since patients such as Gavin had the operation. Khosla, the Stanford doctor who reviewed the protocol, reported in his summary that newer hospital data demonstrates good early results.

Johns and Agarwal said their new protocol was a slow evolution and didn’t need to be overseen by independent reviewers. Performing a bone graft sooner, they said, would solve a common problem in cleft patients in which the arch of their mouth is narrow and collapses inward as they grow. Moving to age 2 was a minor progression, Johns said, noting that the mouths of a 5-year-old, the youngest age most doctors would do a bone graft, and a 2-year-old are similar.

“There was nothing that felt outlandish about it,” Johns said.

Johns concedes they don’t know yet how their patients’ faces will grow over time. So far, she said the outcomes are trending in the right direction, “but we recognize that we’ve got eight more years to continue to see if it holds up.”

She’s clear about this uncertainty with her patients, she said, as well as how Primary’s protocols diverge from the standard. She said if parents are uncomfortable, she encourages them to seek a second opinion. (One mother said Johns’ colleague told her that he would no longer treat her son after she sought a second opinion.)

Primary Children’s Hospital in Salt Lake City (Kim Raff, special to ProPublica)

Jessica Bernstein, whose 6-year-old son is a cleft patient at Primary Children’s and whom the hospital connected with ProPublica, said she had the utmost confidence in the care received and felt Johns and the other doctors carefully thought out decisions. She said they told her that the hospital’s timeline for care was based on the latest, best research. Although she said she wasn’t informed that aspects of the hospital’s protocol differ from the standard or that BMP was off-label for children, she felt her son was being treated in the right place.

Other cleft doctors said previous attempts to fix the upper jaw line between birth and 2 years old — known as “primary bone grafting” — were abandoned because of poor outcomes.

Dr. Ron Hathaway recalls when he was at the University of Indiana and participated in a study that compared outcomes at five cleft centers. One fared significantly worse. The upper jaws of many of its patients didn’t grow as expected, leaving them with underbites. Hathaway was stunned to learn it was his program.

Indiana, it turned out, was the only one that grafted before age 2. The others waited until patients were school age. Hathaway had been involved in such grafting at Indiana since 1992, and now he faced the humbling data that his patients were three times more likely than the study’s best center to need invasive jaw surgery because of it.

“I had to go home and have a serious conversation with my surgeons,” he said.

Indiana eliminated primary bone grafting, and when the study was repeated 10 years later, Hathaway said, outcomes had drastically improved. While this type of research can’t definitively prove causation, he said, “a thinking person would say primary bone grafting causes [poorer growth] of the upper jaw.”

The original study was published in 2011, joining a body of research over decades that showed such grafting was “significantly detrimental,” Kirschner, of Nationwide, said.

Nevertheless, in 2016 the cleft team at Primary Children’s began questioning whether operating earlier would be better, said Agarwal, the chief of plastics. He and Johns said what they do is different — in terms of a slightly older age and specifics of the procedure — from the primary bone grafting of the past. Khosla, of Stanford, wrote in his review summary that the protocol challenges conventional wisdom, but “their rationale and the theoretic benefits are sensible.”

For Cindy Anderson, whose daughter’s bone graft echoed Gavin’s in both timing and failure, it wasn’t just that her daughter had to repeat a surgery. Had they been informed of the innovative nature, Anderson said they might have agreed because of their faith in the doctors. But not to be given a chance to consent made them feel duped.

She said they’re left wondering about Primary Children’s: “What the heck are they doing?”

Mariam Elba contributed research.

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

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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)

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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.