ProPublica

by Jesse Eisinger and Stephen Engelberg

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Around midday on Friday, June 16, ProPublica reporters Justin Elliott and Josh Kaplan sent an email to Patricia McCabe, the Supreme Court’s spokesperson, with questions for Justice Samuel Alito about a forthcoming story on his fishing trip to Alaska with a hedge fund billionaire.

We set a deadline of the following Tuesday at noon for a response.

Fifteen minutes later, McCabe called the reporters. It was an unusual moment in our dealings with the high court’s press office, the first time any of its public information officers had spoken directly with the ProPublica journalists in the many months we have spent looking into the justices’ ethics and conduct. When we sent detailed questions to the court for our stories on Justice Clarence Thomas, McCabe responded with an email that said they had been passed on to the justice. There was no further word from her before those stories appeared, not even a statement that Thomas would have no comment.

The conversation about Alito was brisk and professional. McCabe said she had noticed a formatting issue with an email, and the reporters agreed to resend the 18 questions in a Word document. Kaplan and Elliott told McCabe they understood that this was a busy time at the court and that they were willing to extend the deadline if Alito needed more time.

Monday was a federal holiday, Juneteenth. On Tuesday, McCabe called the reporters to tell them Alito would not respond to our requests for comment but said we should not write that he declined to comment. (In the story, we wrote that she told us he “would not be commenting.”)

She asked when the story was likely to be published. Certainly not today, the reporters replied. Perhaps as soon as Wednesday.

Six hours later, The Wall Street Journal editorial page posted an essay by Alito in which he used our questions to guess at the points in our unpublished story and rebut them in advance. His piece, headlined “Justice Samuel Alito: ProPublica Misleads Readers,” was hard to follow for anyone outside ProPublica since it shot down allegations (notably the purported consumption of expensive wine) that had not yet been made.

In the hours after Alito’s response appeared, editors and reporters worked quickly to complete work on our investigative story. We did additional reporting to put Alito’s claims in context. The justice wrote in the Journal, “My recollection is that I have spoken to Mr. Singer on no more than a handful of occasions,” and that none of those conversations involved “any case or issue before the Court.” He said he did not know of Singer’s involvement in a case about a long-standing dispute involving Argentina because the fund that was a party to the suit was called NML Capital and the billionaire’s name did not appear in Supreme Court briefs.

Alex Mierjeski, another reporter on the team, quickly pulled together a long list of prominent stories from the Journal, The New York Times and The Financial Times that identified Singer as the head of the hedge fund seeking to earn handsome profits by suing Argentina in U.S. courts. (The Supreme Court, with Alito joining the 7-1 majority, backed Singer’s arguments on a key legal issue, and Argentina ultimately paid the hedge fund $2.4 billion to settle the dispute.)

It does not appear that the editors at the Journal made much of an effort to fact-check Alito’s assertions.

If Alito had sent his response to us, we’d have asked some more questions. For example, Alito wrote that Supreme Court justices “commonly interpreted” the requirement to disclose gifts as not applying to “accommodations and transportation for social events.” We would have asked whether he meant to say it was common practice for justices to accept free vacations and private jet flights without disclosing them.

We also would have asked Alito more about his interpretation of the Watergate-era disclosure law that requires justices and many other federal officials to publicly report most gifts. The statute has a narrow “personal hospitality” exemption that allows federal officials to avoid disclosing “food, lodging, or entertainment” provided by a host on his own property. Seven ethics law experts, including former government ethics lawyers from both Republican and Democratic administrations, have told ProPublica that the exemption does not apply to private jet flights — and never has. Such flights, they said, are clearly not forms of food, lodging or entertainment. We had already combed through judicial disclosures, so we knew that several federal judges have disclosed gifts of private jet flights.

We might also have sent Alito some of the contemporaneous stories about Singer’s dispute with Argentina that were readily available online. Given Alito’s previous ties to the Journal’s editorial page — he granted it an exclusive interview this year complaining about negative coverage of the court — it’s probable that the stories we sent him would have included the page’s 2013 piece titled “Deadbeats Down South” that approvingly noted that “a subsidiary of Paul Singer’s Elliott Management” was holding out for a better deal from Argentina. We would have asked how his office checks for conflicts and whether he is concerned it didn’t catch Singer’s widely publicized connection to the case.

The Journal’s editorial page is entirely separate from its newsroom. Journalists were nonetheless sharply critical of the decision to help the subject of another news organization’s investigation “pre-but” the findings.

“This is a terrible look for ⁦@WSJ,” tweeted John Carreyrou, a former investigative reporter at the Journal whose award-winning articles on Theranos lead to the indictment and criminal conviction of its founder, Elizabeth Holmes. “Let’s see how it feels when another news organization front runs a sensitive story it’s working on with a preemptive comment from the story subject.”

Bill Grueskin, a former senior editor at the Journal and a professor of journalism at Columbia, told the Times that “Justice Alito could have issued this as a statement on the SCOTUS website. But the fact that he chose The Journal — and that the editorial page was willing to serve as his loyal factotum — says a great deal about the relationship between the two parties.”

Even Fox News got in the game. “Alito must be congratulating himself on his preemptive strike, but given that the nonprofit news agency sent him questions last week, was that really fair? And should the Journal, which has criticized ProPublica as a left-wing outfit, have played along with this? The paper included an editor’s note that ProPublica had sent the justice the questions, but did not mention that its story had not yet run,” the cable news outfit’s media watcher Howard Kurtz wrote.

There are lessons for ProPublica in this experience. Our reporters are likely to be a bit more skeptical when a spokesperson asks about the timing of a story’s publication.

But one thing is not changing. Regardless of the consequences, we will continue to give everyone mentioned in our stories a chance to respond before publication to what we’re planning to say about them.

Our practice, known internally as “no surprises,” is a matter of both accuracy and fairness. As editors, we have seen numerous instances over the years in which responses to our detailed questions have changed stories. Some have been substantially rewritten and rethought in light of the new information provided by subjects of stories. On rare occasions, we’ve killed stories after learning new facts.

We leave it to the PR professionals to assess whether pre-buttals are an effective strategy. Alito’s assertion that the private flight to Alaska was of no value because the seat was empty anyway became the subject of considerable online amusement.

And the readership of our story has been robust: 2 million page views and counting. It’s possible that Alito has won the argument with the audience he cares the most about. But it seems equally plausible that he drew even more attention to the very story he was trying to knock down.

Alito’s behavior underscores that the “no surprises” approach involves taking a risk, allowing subjects to “spit in our soup,” as Paul Steiger, the former Journal editor who founded ProPublica, liked to say.

Nevertheless, following our practice, we asked the Journal editorial page, Alito and McCabe for comment before this column appeared. We did not immediately hear back from them.

Watch video of senior editor Jesse Eisinger and reporter Justin Elliott in conversation about the investigation.

by Caroline Chen

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

When a ringing phone woke Bob Naedele on his 64th birthday, the caller offered the best gift imaginable: Newark Beth Israel Medical Center had a heart for him. A heart attack had left Naedele, a former police detective, with grave cardiac damage, and he had spent the last 2 1/2 years on the transplant waiting list.

Naedele’s family usually celebrated birthdays with dinner and a cake. But on that day in May of 2018, Bob and his wife of 43 years, Cheryl, instead started calling their children to let them know that they were heading to the hospital. The cake would have to wait.

He went into surgery and received his new heart shortly after midnight.

At first, Bob Naedele’s recovery seemed to go well, according to his wife. He returned home after three weeks and initially had more energy than before. It seemed as though their longtime dream of traveling across the country in an RV to visit national parks might be within reach.

But nine weeks after his transplant, Naedele got a fever, and his hands began shaking with tremors. He returned to Newark Beth Israel. Doctors ran test after test but were unable to find the cause.

After he spent more than a month in the hospital, doctors discharged him, but he continued to decline. “He fell, and I had to get my neighbor’s help to get him back to bed,” Cheryl Naedele recalled. “I had to put him in a wheelchair to get him to the bathroom.” Bob Naedele deteriorated so quickly that his wife had to call for an ambulance. This time he went to Yale New Haven Hospital, which was closer to their home in Connecticut. By the next day, doctors in Yale’s intensive care unit found the culprit: The heart Naedele had received had been infected with a parasite that causes Chagas disease.

“He was basically filled with parasites,” recalled Dr. Tariq Ahmad, chief of heart failure at Yale cardiology. The organisms had multiplied in his heart and invaded his nervous system and brain.

For 12 long weeks, the doctors at Yale tried to purge the parasites, but this was difficult with a patient who needed to be on immunosuppressants to prevent his body from rejecting the new heart.

Bob Naedele watches a Miami Dolphins game on a tablet in Yale New Haven Hospital. He took a figurine of former Dolphins quarterback Dan Marino with him everywhere, including his hospital stays. (Courtesy of Cheryl Naedele)

Damage to Bob Naedele’s nervous system made him hypersensitive, Cheryl Naedele recalled. Doctors intubated him after he developed pneumonia, and every time the nurses suctioned his tube to clear secretions, his wife walked out of the room so she wouldn’t have to hear her husband screaming. Finally, Bob told her that he couldn’t bear the pain any more, so they discontinued treatment. Her high school sweetheart passed away seven months after that hopeful call about the heart that was waiting for him.

His death could have been prevented if the donor had been screened for Chagas.

Chagas disease is caused by a parasite called T. cruzi, which is transmitted via insects and found mainly in rural areas of Central America, South America and Mexico. Though cases of Chagas in the United States are rare, the parasite has been a known risk for transplant recipients for decades. Since at least 2001, case studies have detailed how U.S. patients have died after receiving infected organs.

For years, experts have recommended that transplant networks screen donors who were born in countries where the parasite is endemic. A 2011 working group of transplant infectious diseases specialists and representatives from the U.S. Centers for Disease Control and Prevention said these donors should be tested, and so did the American Society of Transplantation in 2019. Infected patients can appear healthy for years, and some never develop symptoms, so it’s not obvious they harbor the parasites.

Yet, despite expert recommendations, the U.S. does not require at-risk organ donors to be screened for Chagas.

Some American transplant networks screen for the disease anyway, but New Jersey’s organ procurement organization, the NJ Sharing Network, did not — even though the donor whose heart Bob Naedele received was an immigrant from Mexico.

Cheryl Naedele filed a medical malpractice lawsuit against the NJ Sharing Network, Newark Beth Israel and members of the medical team involved in her husband’s care. NJ Sharing Network and Newark Beth Israel declined to comment on ongoing litigation. In court filings, both organizations denied the allegations of medical malpractice.

On Monday, the board of directors of the Organ Procurement and Transplantation Network, which governs transplant policies in the U.S., will meet to consider a proposal that would require screening of donors born in Mexico or 20 countries in Central and South America.

The proposal has divided transplant professionals. Some state and regional organ procurement organizations argue that screening for Chagas would be too cumbersome and could potentially delay organs from reaching patients in need. Others argue that there are ways to speed the process and it’s time to finally implement the screening that experts have recommended for years to prevent deaths like Bob Naedele’s.

To Cheryl Naedele, the choice is obvious. “With heart transplants, you’re supposed to be giving patients a second life, but then you’ve killed them” if you provide a diseased heart, she said. “How much should it cost to prevent this suffering?”

Photos of Bob Naedele and his three children hang on the wall in Cheryl Naedele’s living room. (Yehyun Kim for ProPublica)

Though Chagas isn’t common in the U.S., the risk is serious enough that blood donations have been screened routinely for antibodies to the parasitic disease since 2007.

Studies estimate that about 300,000 infected people are currently living in the U.S., mostly immigrants. The risk of donor-derived infection is increasing, the Organ Procurement and Transplantation Network said, due to migration patterns and increased organ distribution.

The biggest concern about screening for Chagas is timing. Organs are typically transplanted within a few days after becoming available, in order to maintain their health after a donor dies. Organs are scarce, and nobody wants to lose one while waiting for a test result.

Current regulations require that organ donors be screened for a slew of infectious diseases, including HIV, hepatitis B and C, cytomegalovirus, Epstein-Barr virus and syphilis. Those tests can typically be completed within 12 hours, according to Colleen McCarthy, the president for the Association of Organ Procurement Organizations.

For more than 15 years, Donor Network of Arizona has tested every organ donor for Chagas, according to PJ Geraghty, the network’s vice president of clinical services. They haven’t had a positive donor yet but continue to screen because so many donors in the state come from endemic areas. A partnership with a lab in Tempe has allowed the group to test for Chagas in the same time frame as other mandatory tests, Geraghty said.

But McCarthy said that it’s “optimistic to think that the lab community could respond” quickly to a new requirement. “Some labs may have more ability to adjust to a new regulation,” while others may not, she said, potentially leaving some organ procurement organizations unable to comply.

Responding to this concern, a committee of the Organ Procurement and Transplantation Network added a workaround to its proposal. The committee recommended screening for at-risk donors but said that a transplant can proceed even if the Chagas test results are not back yet.

That means that a patient could learn after their transplant that they had received an infected heart, but knowing about the infection would allow doctors to treat it early. Currently, organs are not ruled out if they are infected with other viruses, but the patient is typically informed of any positive results so they can decide, along with their medical team, whether it is worth the additional risk and need for treatment. The fact that some patients choose to accept HIV-positive organs “highlights the incredible need” for organs, said McCarthy.

Anne Paschke, a spokesperson for the Organ Procurement and Transplantation Network, said the group was trying to “balance patient safety with the risk of negatively impacting organ utilization.”

Transplant experts, infectious disease specialists and the American Society of Transplantation have said that hearts from donors with Chagas should not be transplanted. While there is a treatment for Chagas, past case studies have found that hearts have a much higher risk of transferring the infection to the recipient compared with other organs.

Dr. Saima Aslam, the director of solid organ transplant infectious diseases at UC San Diego Health, said that though testing should be done prior to transplant, that doesn’t necessarily mean that an infected heart can’t be used. “Knowledge is power,” she said. “If we know a patient has a 90% chance of dying, we could take the organ and put them on treatment from the get-go with the patient or family’s buy-in, understanding the risk.”Treatment prognosis depends on the condition of both the patient and the heart, she said. Ultimately, she said, the industry should evolve to support faster testing, what Aslam called a “surmountable obstacle.”

The NJ Sharing Network, which obtained the heart that was offered to Bob Naedele, wrote in a public comment that it opposes the proposal for Chagas testing, saying that it will “increase the financial burden, process, and time” needed to evaluate donors.

Kasper Statz, director of systems integration at OurLegacy, an organ procurement organization in Florida, said that additional costs for testing shouldn’t be a major concern. “In the world of the things we pay for, testing is not that expensive,” especially compared to the cost of treating a patient who receives an infected organ, he said. OurLegacy, which covers Orlando and parts of central Florida, already screens for Chagas based on the donor’s history and risk profile. (So far, OurLegacy hasn’t found any positive donors.)

Donor Network of Arizona said the Chagas test costs it less than $100, with extra fees for expedited results. “We continue to test because the cost of the test — both financial and operational — is relatively low in Arizona compared to the risk that an inadvertent transmission of Chagas disease could pose to an organ recipient,” said Geraghty, the network’s vice president of clinical services.

Cheryl Naedele said she wants the Organ Procurement and Transplantation Network to mandate that Chagas screenings be completed before any transplants. “Knowing what I know now, I would never take a Chagas-infected heart,” she said. “If I found out after the fact, I’d be furious.”

In the case of Bob Naedele’s transplant, the donor was on life support, so Cheryl thinks there would have been time to run the test.

Gary Mignone, a spokesperson for the NJ Sharing Network, said, “It is the practice of New Jersey Sharing Network to follow all applicable guidelines and regulatory requirements with regard to organ donation, and we work closely with members of the transplant community to save lives.”

Cheryl Naedele at her home. “He went through months and months and months of suffering,” Cheryl said of her husband, Bob. “And I think nobody should ever have to go through that.” (Yehyun Kim for ProPublica)

The fact that some organ procurement organizations screen for Chagas and some don’t may be a source of confusion for medical teams treating transplant patients.

Dr. Eliahu Bishburg, an infectious disease specialist at Newark Beth Israel who was part of Naedele’s medical team, said in a deposition that he had not considered Chagas as a possible cause of Naedele’s fevers, because he had thought that donor organs were already screened for it. He had read the 2011 expert working group’s report and thought that its recommendations had become policy.

Bishburg, a defendant in Cheryl Naedele’s suit, denied the malpractice allegations in a court filing. He did not respond to emails or a call requesting comment.

Newark Beth Israel’s pathology department also missed the parasite. When Bob Naedele was admitted with a fever, a doctor ordered a blood smear, in which a sample of blood is spread on a glass slide and examined under a microscope. This method can be used to detect parasites.

A lab worker, Annie Varughese, wrote in a statement that the slide looked a “little suspicious,” according to a court filing. Her statement said that she asked a colleague to review the slide, and her colleague gave the slide to pathologist Dr. Xinlai Sun to review. “Dr. Sun brought the slide back and said it was negative,” Varughese wrote. “So I entered the result as [negative] for parasites (reviewed by Dr. Sun).”

Varughese and Sun are both defendants in the malpractice case. In court filings both denied the allegations of medical malpractice. Varughese did not respond to a call seeking comment. Neither she nor Sun responded to messages left with their attorneys.

Sun said in a court filing that he “does not recall looking at the sample formally, as typically negative slides are not reviewed by the pathologist, only the technicians. However, it is possible he was asked by the technician to informally look or consult with respect to certain field(s) on the slide.”

At the Yale medical team’s urging, members of Newark Beth Israel’s pathology department looked again at the samples they had collected from Naedele during his July admission, according to a court filing. Upon reexamination, “the parasite(s) were found,” Sun said in a court filing.

Linda Kamateh, a spokesperson for Newark Beth Israel, said the hospital’s transplant team is monitoring the proposal to require Chagas screening for at-risk donors. “Should this proposal be adopted, the additional screenings would be immediately incorporated,” she said. “As always, our guiding principle is to provide our patients with the highest quality care possible.”

In 2019, a year after Naedele’s transplant, Newark Beth Israel’s program was the subject of a ProPublica investigation that revealed the heart transplant team at Newark Beth Israel kept a brain-damaged, unresponsive patient on life support to boost its lagging survival rate. A subsequent investigation by the federal Centers for Medicare and Medicaid Services found that the transplant program placed patients in “immediate jeopardy,” and the federal regulator required the hospital to implement corrective plans. Newark Beth Israel did not agree with all of the regulator’s findings, and in a statement at the time said its own review found that its post-transplant care was not unethical, was not compromised by concerns about survival rates and did not deviate from the standard of care expected of medical professionals.

Cheryl Naedele still remembers the hope and promise on Bob’s birthday in 2018, when they sped to Newark Beth Israel for his new heart. They had imagined it would bring him many more years to spend with his family; Bob had loved making cookies on Christmas and soda bread on St. Patrick’s Day with his grandchildren.

First image: Cheryl and Bob at their wedding in Fairfield, Connecticut, in 1975. Second image: Bob and his grandson, John, decorate Christmas cookies together at Bob and Cheryl’s home in 2014. (Courtesy of Cheryl Naedele)

As for his treasured dream of visiting national parks, Cheryl recalls that even while her husband’s body was faltering at Yale’s hospital, he whispered to her in a lucid moment: “When I get out of here, can we still get the RV?”

Now she’s planning to take the trip with a friend. She’ll bring along the container of Bob’s ashes. It’s far from the original plan, but it’s all she can do now.

“I’m taking him to see all the national parks,” she said.

by Kartikay Mehrotra, ProPublica, and A.C. Thompson, ProPublica and FRONTLINE, photography by Amy Osborne for ProPublica

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

“America’s Dangerous Trucks” is part of a collaborative investigation from FRONTLINE and ProPublica. The documentary premiered on June 13, 2023, and is available to stream in the PBS App and on FRONTLINE’s website.

In 2017, researchers at the U.S. Department of Transportation embarked on a project aimed at making America’s roads less dangerous.

They were concerned over the rising number of pedestrians and cyclists killed in collisions with trucks, which claim the lives of several hundred people every year.

The research team decided to focus on a safety device called a side guard, which is designed to reduce the hazards posed by large commercial trucks.

Made of plastic, aluminum or steel, the guards hang between the truck’s front and rear wheels, preventing pedestrians and cyclists from tumbling beneath the vehicles and getting crushed. The guards are required on trucks in dozens of countries, but they aren’t in wide use in the U.S.

When the researchers drafted their report, they included a key suggestion: The DOT should craft federal regulations requiring side guards.

A light side guard meant to prevent pedestrians or cyclists from sliding beneath a truck. A more robust side guard meant to prevent cars from sliding under a trailer. (Illustrations by Matt Twombly)

But that recommendation generated intense resistance, both internally, from department officials who challenged their findings, and externally, from trucking industry lobbyists.

Over the span of at least six months, DOT officials repeatedly discussed the ongoing research with representatives of the nation’s largest trade group for trucking companies, the American Trucking Associations. And the ATA repeatedly pressured them to alter the report.

After meeting with the ATA in December 2018, the department supervisor overseeing the project had a very direct message for the researchers. “PLEASE delete any mention of a recommendation to develop … any regulation,” he wrote in an email. “An industry standard is acceptable, but no mention of ‘regulation.’”

The industry objections resulted in a remarkable concession from the department: It allowed trucking company lobbyists to review the researchers’ preliminary report and provide comments on it.

By the time of its release in 2020, the report had been dramatically rewritten, stripped of its key conclusions — including the need to federally mandate side guards — and cut down by nearly 70 pages.

ProPublica and FRONTLINE used interviews, agency emails, meeting notes, copies of drafts and other documents to reconstruct how the report was transformed. The ATA’s ability to secretly shape government research highlights the cozy relationship between the federal officials tasked with keeping our roads safe and the trucking companies they oversee.

Quon Kwan was the DOT supervisor who oversaw the project. In an interview, he told ProPublica and FRONTLINE he regretted his role in watering down the researchers’ report. He said the department’s deference to the trucking industry ultimately contributed to his retirement in 2019.

“The red tape and politics got so bad that I couldn’t do my dedicated mission work,” Kwan said. “When your management tells you to jump, the expected response is, ‘How high?’”

On June 13, ProPublica and FRONTLINE detailed the industry’s fight against a different, heavier side guard — one designed to prevent cars and other passenger vehicles from getting wedged beneath large commercial trucks during roadway collisions. Federal regulators have been aware of these deadly incidents, called underride crashes, for decades but have taken few measures to stop them.

In a statement, the DOT said its officials had thoroughly reviewed the researchers’ report on the lighter side guards for pedestrians and cyclists, which are also known as lateral protective devices.

“Based on the lack of data to support a regulation on lateral protective devices, NHTSA suggested that the report not include a recommendation to require these devices on trucks and trailers,” said the statement, referring to the National Highway Traffic Safety Administration, the DOT agency that sets the safety standards for all cars and trucks on American roads.

Regarding the question of whether the ATA had exerted pressure to change the researchers’ report, the DOT said, “The report was issued based on the best data and research available at the time. Outside influence was not a contributing factor.”

Dan Horvath, the ATA’s vice president of safety policy, acknowledged that the group discussed side guards with the department. “ATA spends a great deal of time interacting with our regulators, including soliciting updates about their activities, providing feedback on research and potential rules so we can educate our members,” said Horvath in an emailed statement.

He did not respond to a direct question about the ATA’s role in revising the report.

The DOT’s Volpe Center, where the researchers who produced the report are based, did not directly respond to requests for comment.

As the report was going through its long and painful gestation, 20-year-old Robyn Hightman, who used they/them pronouns, was cycling 400 miles from Charlottesville, Virginia, to New York City. They’d won the attention of a couple of professional bike teams there and were leaving college to go pro. Hightman got a job as a bicycle messenger to pay bills.

Robyn Hightman during a bike ride in New York City in 2019 (Courtesy of Jay Hightman)

On June 24, 2019, their second day on the job, Hightman was making their first delivery, just a short ride from the Empire State Building. As they pedaled north in the right lane on Sixth Avenue, a parked cab merged into traffic. According to legal filings, Hightman swerved left, but was sandwiched between the taxi and a truck that was in the next lane. Hightman fell beneath the truck and was killed.

Four years later, Hightman’s father is still pushing for side guard regulations that he believes could save families from suffering as he has. But Jay Hightman said he was surprised to find he wasn’t just fighting the trucking industry, but also the federal government, which has appeared impervious to the pleas of victims’ families.

“Those with the biggest voice lobby against us because it’s too expensive to change the status quo,” he said. “But that’s not a responsible or reasonable way for our government to solve this real issue of traffic violence in our country. Robyn was crushed by the rear wheels of the truck. If there had been a sufficient side guard, she probably would be alive today.”

First image: Jay Hightman sits on the stoop of the apartment where Robyn lived before moving to New York. Second image: Loved ones have left messages on Robyn’s ghost bike in Richmond, Virginia.

A pair of tragedies in Portland, Oregon, sparked interest in side guards there.

In 2007, two cyclists died in separate crashes involving heavy trucks — one was killed by a cement mixing truck, the other by a garbage truck. The deaths prompted the city to launch a pilot program, equipping about a dozen municipal trucks with lightweight side guards.

Cities across the country began to take action, with New York, Chicago, Boston and Washington, D.C., passing ordinances. The new laws generally required the installation of the safety devices on city-owned trucks or heavy vehicles under contract with the city, such as trash trucks.

In 2017, the DOT researchers, based at the Volpe Center in Cambridge, Massachusetts, began studying side guards. The goal, according to a DOT document, was “to examine the safety benefits, costs, and feasibility” of installing the guards on more trucks across the country. The researchers aimed to “develop actionable industry and policy recommendations” that would benefit pedestrians, cyclists and other people who are especially vulnerable in collisions with trucks.

The research team — which included engineers, economists and urban planners — took a look at the global picture and began gathering information.

Dozens of countries have side guard requirements meant to protect pedestrians and cyclists. Japan first mandated them in 1979. In 1986, the United Kingdom did too. Two years later, the United Nations adopted an international side guard standard that was ratified by 43 countries and the European Union. China, Peru, Brazil and Australia have all passed regulations in the decades since.

The DOT researchers dug into 11 studies that have been done on the effectiveness of side guards in preventing deaths or injuries. The “majority of these presented evidence that side guards are effective,” wrote the researchers in the draft report.

For example, after the U.K. adopted side guard requirements, researchers observed a significant drop in the percentage of fatalities caused by collisions between cyclists and trucks traveling in the same direction, according to a 2010 study by the British nonprofit Transport Research Laboratory.

Eventually, the team made several suggestions. Among them: The DOT should work with the industry to write standards for side guards and the department should consider mandating them on heavy trucks.

In July 2018, Kwan met over video with leaders of the trucking industry gathered at the ATA’s Washington, D.C., headquarters. He told them that researchers were considering recommending side guard regulations.

The news did not go over well with the ATA, which represents America’s largest haulers, including major companies like UPS, Amazon and FedEx, which operate a mix of smaller delivery trucks and massive 18-wheelers.

After the meeting, Kwan emailed the team. “We had some heated feedback from ATA,” he wrote. “ATA was wondering how we are going to word our recommendations in the final report. They are extremely concerned about any recommendation for side guards on over-the-road, long-haul trucks that do not spend much time in the city.”

The fleet owners, Kwan noted in his email, “are very concerned about their cost, and they question the safety benefits of side guards on such trucks. They raised the issue that pedestrians and cyclists have no business being on highways,” where those trucks do most of their driving.

The feedback wasn’t entirely negative, according to Kwan. “On the other hand, they can see the need for side guards on trucks that spend most of their time in the city on city streets.”

Still, ATA leaders were concerned about any recommendations the DOT might make on side guards. They argued that such suggestions from the government might be used as a “weapon” in lawsuits filed against trucking companies.

Kwan was conciliatory, promising the group that “we would allow them to review a draft of the final report before publication.”

Martin Walker advised Kwan and the researchers on the side guard report in his role as chief of research at the Federal Motor Carrier Safety Administration, the DOT agency that licenses and monitors trucking companies.

“The industry holds a lot of sway on what rules get made, and they all hate the idea of additional rules,” said Walker, who retired in 2019. “Unfortunately, the public doesn’t have much impact on what DOT does. But there’s a very close relationship with industry, there’s no doubt about that.”

In the months after the July meeting, the ATA continued to try to influence the researchers’ conclusions.

DOT emails show that Kwan continued to chat with lobbyists about the report. That fall, he reiterated his offer to allow them to provide input on the draft report.

“As I promised, ATA will be given a chance to review and provide comments on the draft,” Kwan wrote to Ross Froat, then an executive with the ATA, on Nov. 13, 2018.

Froat wanted to know if the ATA’s input would be made public. “Will these be private comments?” he asked.

Kwan reassured him. “The public will not see your comments,” Kwan’s email promised.

On the morning of Dec. 19, 2018, three ATA representatives joined a conference call with Kwan and another DOT official to discuss the group’s suggestions on the report.

During the call, the ATA described side guards as “band-aid” solutions when there’s “less burdensome technology available,” such as electronic sensors that can keep a truck from making a dangerous lane change, according to meeting notes obtained by ProPublica and FRONTLINE. The lobbyists also noted that trucking companies “already spend $10 billion on safety technology” each year.

Kwan reassured the industry. He told them the transportation department “was not planning to regulate,” meeting notes show.

Drafts of a report by Volpe Center researchers before (left) and after government officials assured industry lobbyists that the report would not include any regulatory recommendations.

After the December meeting, Kwan sent his message urging the researchers to delete any mention of new regulations.

He ended with a plea: “My office director is emphatic about this.” Kwan’s boss was Steven Smith, who was then a director at the FMCSA, the trucking regulator. Smith did not respond to a request for comment.

Kwan told ProPublica and FRONTLINE that he’d never been asked to offer such deference to industry in his two decades of working for the department. “Normally we don’t give ATA an opportunity to review and provide comments on any of our reports,” he said.

The researchers also faced opposition from within the DOT.

Shashi Kuppa, a career official with NHTSA, became heavily involved in rewriting the report. Internal documents show that she removed key language from the final document, arguing that side guards would cost too much and would not save many lives.

Kuppa and other NHTSA officials reviewed the draft report and challenged the researchers’ conclusions. Kuppa and her colleagues believed installing the guards would cost $600 to $4,500 for each vehicle and would save a maximum of 18 lives annually.

She concluded the expense was not worth it, given the low number of lives saved.

The Volpe Center report was “bogus” and based on third-party research, she told ProPublica and FRONTLINE.

But the DOT researchers saw it quite differently. They responded with their own analysis.

DOT data doesn’t track how many people are killed by falling beneath large trucks. But the researchers examined the available data to come up with some estimates. They found that about 125 pedestrians and cyclists die each year in crashes in which side guards would be relevant. By their calculations, side guards had the potential to save the lives of up to 52 of those people, far more than Kuppa had estimated, according to DOT documents reviewed by ProPublica and FRONTLINE.

Looking at data from several U.S. side guard manufacturers, the researchers concluded the guards would cost $440 to $1,850 per truck, well below the top end of the range given by Kuppa and her colleagues.

In May 2020, the DOT published its final version of the report. It was 66 pages, about half the length of the draft. And it contained no recommendations at all — none directed toward the trucking industry and none aimed at federal regulators. It bore little resemblance to the researchers’ earlier work.

One traffic safety advocate said the report confirmed his suspicions about the relationship between the DOT and industry.

“Crash victims and survivors have long felt that the Department of Transportation is overly deferential to the interests of industry relative to improving safety outcomes,” said Zach Cahalan, executive director of the Truck Safety Coalition. “Truck safety outcomes have never been worse and we need DOT to do everything in its power to reduce truck crash deaths and injuries.”

Kuppa, who is still with NHTSA, downplayed her role in revising the research. In an interview, she described herself as a “worker bee” who is “very passionate” about road safety.

“I feel bad for the cities that have made legal requirements for side guards,” she said, arguing that most pedestrians are killed in accidents involving the front of cars and pickups, not the sides of large trucks. She said NHTSA had “limited resources” and is pursuing more cost-effective solutions to prevent pedestrians and cyclists from being injured or killed.

“I do not have a relationship with anyone at the ATA,” Kuppa said.

In a statement, the DOT said Kuppa “never spoke to anyone from the trucking industry about the report” or about the decision to eliminate the researchers’ recommendation for a side guard regulation.

By 2020, NHTSA’s top official had gotten involved with the side guard issue.

The Volpe Center maintained a webpage with data about pedestrian and cyclist fatalities, a list of side guard vendors and cities where devices were being used.

But the page was taken offline at the direction of James Owens, then NHTSA’s acting administrator, an appointee of President Donald Trump.

In an email dated Jan. 24, 2020, a Volpe researcher wrote to staff, misspelling Owens’ last name: “James Owen called regarding our side guard web page which he wants taken down.” The reason? An activist named Marianne Karth was “citing that website to pressure NHTSA to take some regulatory action on the matter,” the email said.

The page was pulled down within weeks, and it remained down for the duration of the Trump administration, one source said. Volpe has since put the information back online. Owens, who left government in 2021, did not respond to a request for comment.

Stephen Bingham is disgusted by all of this.

In 2009, Bingham’s daughter, Sylvia Bingham, 22, was cycling to her job at a nonprofit organization in Cleveland that helps women find jobs in the construction and energy fields. It was her first job since graduating college.

But she didn’t make it to the office. She was killed on her commute.

According to court records, Sylvia Bingham was biking toward a four-way intersection. Next to her was a box truck headed the same direction. When the truck driver didn’t signal a turn, she pedaled forward. The driver swung right, striking her. The impact forced her under the vehicle, smashing her skull, ribs, abdomen and pelvis.

Stephen Bingham and his wife, Françoise Blusseau, lost their daughter, Sylvia Bingham, in 2009 when, as she biked to work, she was hit by a truck. First image: Family photos of Sylvia Bingham as a baby and at her high school graduation. Second image: Since his daughter’s death, Stephen Bingham has campaigned for federal rules requiring trucks to have side guards and has joined bike safety organizations.

Stephen Bingham would like to see side guards on vehicles like the one that killed his daughter. It’s become something of a crusade for him.

But after learning about how the trucking industry was able to influence the DOT’s report, he’s become deeply skeptical of the federal safety apparatus.

“It’s hard to trust this process when the government’s been so disingenuous for so long,” said Bingham, whose dining room walls are adorned with art, including paintings done by his only child. “As long as industry profits come first, I fear this process will remain rigged.”

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Julia Ingram of FRONTLINE contributed reporting.

by Ellis Simani and Robert Faturechi

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The case was a bold step for the Securities and Exchange Commission.

In 2021, the agency accused Matthew Panuwat of insider trading. Five years earlier, he had learned that his own company, a biopharma operation called Medivation, was about to get acquired. But instead of buying shares in his employer, he bought options in a competitor whose stock could be expected to rise on the news. The agency says he made $107,000 in illicit profits.

For the first and so far only time, the SEC filed a case that accuses an executive of using secret information from his own company to trade in the stock of a rival. “Biopharmaceutical industry insiders frequently have access to material nonpublic information” that impacts both their company and “other companies in the industry,” Gurbir Grewal, the commission’s director of enforcement, warned in announcing the case. “The SEC is committed to detecting and pursuing illegal trading in all forms.”

One of the cornerstones of the agency’s case against Panuwat is that Medivation had a policy that explicitly barred employees from buying or selling competitors’ stock based on company information not available to ordinary investors.

It wasn’t just Panuwat who risked violating Medivation’s policy, a trove of confidential IRS data obtained in recent years by ProPublica shows.

It was also his then-boss, CEO David Hung.

The records show Hung traded frequently in the stock and options of pharmaceutical companies, betting tens of millions of dollars on the rise or fall of shares of dozens of such firms, some of which were direct competitors with his company. Several of his trades came just before news about a rival that he could have learned about in his position as CEO. In one case, he traded ahead of news he personally announced.

The size of Hung’s trades dwarfs those that got his subordinate, who has denied any wrongdoing, in the crosshairs of the SEC.

Hung’s spokesperson acknowledged the CEO has learned nonpublic information about competitors, but denied that information ever informed any of his dozens of trades.

Earlier this year, ProPublica revealed that some executives with access to nonpublic industry information had made remarkably well-timed transactions in the securities of their direct competitors and partner companies. Securities law experts said many of the trades, which in some instances rapidly delivered millions of dollars in profit, warranted examination by regulators. The transactions ranged across sectors: from energy to toys, paper products to mortgage servicers.

But one industry stood out for both its frequency and variety of questionable trades: biotech and other relatively small health care enterprises such as medical device makers and drug companies. Dozens of wealthy executives and well-connected investors reported superbly timed stock trades in such companies, including in businesses they competed with or had personal ties to.

ProPublica has analyzed millions of transactions documented in the tax records of the wealthiest taxpayers, including many of the nation’s top business leaders. A high proportion of these trades involved plain vanilla investments, with long-term holdings of blue chip stocks and the like. But a minority of the transactions displayed what experts say are hallmarks of potentially suspicious trading.

Finding well-timed trades was only a starting point for ProPublica’s analysis. We then scrutinized transactions that occurred just before market-moving news, particularly those that represented a departure from an investor’s previous investing pattern, because they either had hardly if ever traded a particular company's stock, were trading an unusually high dollar amount or were making use of risky options for the first time. We examined whether those people had any possible nonpublic means of obtaining information about the companies whose stock rose or fell at an opportune moment. We provided anonymized descriptions of these trades to academics, former prosecutors and former SEC officials, and focused on those they said should have garnered the attention of regulators.

Among the notable examples:

The chairman of a biotech company bought shares in a corporate partner just as the partner was reaching the final stages of secret negotiations to be purchased.

The chairman of a bone health company made aggressive bets on a medical technology firm run by an adviser to his board just before its sales took off, netting him $29 million in a series of options trades.

A wealthy investor with ties to a niche area of cancer research personally traded, for the first time ever, in a company in that sector just before it was taken over. He bought high-risk options that earned him a quick $1 million in profit.

An information edge can be lucrative in any industry, but especially so in the health care sector. Many of its companies are built around only one or a handful of products, making their shares particularly volatile and ripe for profit by investors with inside knowledge. Biotechs and other up-and-comers face clear make-or-break moments: Clinical trials, signals from regulators or takeover rumors can cause wild swings in share prices.

Since beginning to report on our massive trove of IRS records in 2021, ProPublica has analyzed the data and used it as the basis for a series of articles, The Secret IRS Files, that reveal the many ways in which the tax code favors the rich and how the ultrawealthy exploit those advantages.

The IRS data also included millions of records of wealthy taxpayers’ stock and options trades, provided by the brokerages that handled the trades. While the SEC routinely reviews stock trading data from brokers and exchanges, the agency does not have access to IRS data, which in many ways is more comprehensive. (A spokesperson for the SEC declined to comment for this article.)

The securities experts said there is no fixed definition of what makes a trade suspicious and worthy of further investigation. A propitious trade for a relatively small amount, for example, might still warrant scrutiny if the investor has a tie to the company. One excellently timed trade is less noteworthy if the investor frequently trades in that security. A trade with a modest return could still be problematic if it came before news the investor knew about in advance or set in motion. And even if a trader’s investment strategy in a stock wasn’t ultimately successful, a single lucrative trade could still be deemed illegal.

The experts interviewed by ProPublica about the trading patterns examined in this story said that while each should trigger closer scrutiny from regulators, the question of whether they would lead to any action would depend on a host of additional factors. They noted that stock trades are generally deemed to violate insider trading laws only when multiple elements are met. The trader must have had information, not yet publicly known, that would affect the company’s share price. And the trader, or the person who provided the tip, must have had a duty not to disclose the information or use it for personal benefit.

ProPublica’s records give no indication as to why investors made particular trades or what information they possessed. The wealthy investors named in this story either denied their trades were improper or did not comment.

The personal trading policy for Medivation, the multibillion-dollar company Hung ran, was particularly explicit. It warned its employees to be careful trading the shares of competitors because Medivation’s employees possess nonpublic information that can affect those companies’ stock prices as well. “For anyone to use such information to gain personal benefit,” the policy stated, “is illegal.”

But ProPublica’s data show Hung, who has led a number of biopharma companies and has been described in the press as a master dealmaker, risked violating the company’s policy by trading in the securities of competitors. During the decade-plus in which Hung led Medivation, most of his proceeds from securities transactions in companies other than his own involved the pharma sector.

With timely trading, he sometimes scored gains of hundreds of thousands of dollars or managed to avoid a calamitous loss. (The records show that he sometimes lost money as well.)

Securities experts with whom we described his trading patterns and high-ranking role (but not his name) said the investments appeared to show a top executive capitalizing on information not available to the average investor.

In July and August 2011, Hung’s tax records show, he sold more than a million dollars’ worth of stock in a company called Dendreon. Dendreon was then producing a promising prostate cancer therapy that Hung’s firm was competing against, working to get their own drug to market. The day after Hung sold the last of his two roughly half-million-dollar tranches of Dendreon stock in August, the company’s share price fell 67% because of poor sales and a lack of initial enthusiasm from doctors about its prostate cancer drug.

Industry experts said that when a pharmaceutical is in late-stage development, as Medivation’s drug was at the time, the company will normally have its representatives examine the competitive landscape, including surveying doctors’ offices about rival drugs. And business-side employees of companies, even competitors, frequently mingle and trade gossip at conferences.

A few months later, in October 2011, Hung again bought shares of Dendreon, but quickly made a U-turn days after, selling those shares off for about $150,000, essentially the same price he had bought them for. A week later, Hung announced that his company had learned that trials had gone so well for its own prostate cancer therapy that the drug was going to start being offered even to participants who had been given a placebo. “These results are both an important step toward making this life-extending potential treatment available to the prostate cancer community and a significant milestone for our company,” Hung said in a press release at the time.

Just as Hung announced his company’s promising results, Dendreon released lackluster quarterly earnings. Its stock fell 37%.

David Nierengarten, an analyst who covered both companies at the time, told ProPublica the earnings report caused most of the fall, but part of it could also be attributed to Medivation’s clinical trial results, which posed a threat to Dendreon’s market share. Hung’s spokesperson said that Hung did not know the outcome of his company’s clinical trials when he sold Dendreon’s shares.

Hung sold Dendreon shares on almost two dozen occasions over six years, with most of the trades for less than $150,000. Hung’s spokesperson denied he had any relevant nonpublic information when he made his Dendreon trades.

In one instance, tax records show Hung traded a competitor’s stock ahead of news he himself disclosed that experts said would likely qualify as material.

On Aug. 24, 2015, Hung announced that Medivation was acquiring a cancer-fighting medication from a company called BioMarin. The drug was one of a handful of cutting-edge new drugs that Hung hailed as an “exciting class of oncology therapeutics.”

What Hung didn’t say was that on the same day his company finalized the acquisition — but three days before the public announcement — he made a purchase in his personal stock trading account. He bought about $8 million in shares of Clovis Oncology, a company that was separately developing a drug in the same treatment category, known as “PARP inhibitors.”

After the acquisition, the pharmaceutical trade press noted that there was growing interest in this class of drugs. Hung’s deal marked the first big acquisition of a PARP inhibitor.

“Obviously all the PARPs are going to pop,” said Nierengarten, the analyst who covered Hung’s company. Clovis is a small company reliant on a small number of drugs, “so it’s really going to pop,” he said.

And it did. In the week after the Medivation agreement was announced, Hung’s stock purchase paid off: The price of Clovis shares increased by about 11%, a rise experts attributed partly to Hung’s drug acquisition.

By the time Hung sold the shares the next month, he netted $1.25 million in profit.

Hung’s spokesperson defended the trades, saying Hung did not believe Medivation’s acquisition of BioMarin’s drug would affect the share price of a company that made a drug in the same class.He also said most of the stock’s rise came in the days after the news of the acquisition, not the day of, which he said indicated Hung’s profit was attributable to other factors.

The Clovis shares that Hung bought represented the final step in what records show was a series of complex transactions involving what are known as stock options — arrangements to buy or sell a security at some future date. In April 2015, Hung started selling Clovis “put options.” That meant he was entering into a contract that gave another investor the right to sell Clovis shares to him in the near future at a specified price. It was essentially a bet by Hung that Clovis shares would remain at roughly the same price or rise (a sophisticated and unusual transaction for a typical retail investor).

In April and May, Hung sold a small number of his contracts. In June and July, he began selling more frequently and in larger quantities: 17 times as many contracts as he had sold in the previous two months. According to his spokesperson, this was around the time Hung was approached to buy BioMarin’s drug.

The expiration dates for the options were staggered. A large group of his contracts expired on the same day he finalized the drug acquisition.

At that moment, Hung had two choices, both seemingly unpleasant. According to his spokesperson, he likely could have paid cash to end the contracts, which would have resulted in an immediate loss since the options were for a higher stock price than Clovis was trading at on that day. The contracts also allowed him to buy the specified number of shares, a seemingly bad deal since he would pay anywhere from $75 to $85 per share for stock that was trading at less than $73.

But on that day, Hung knew something the market didn’t: that his company was about to announce it was buying Biomarin’s drug.

Hung bought about $8 million worth of Clovis shares. After his company’s announcement, Hung was in the black in a matter of days, even after he bought at the inflated price. The option trades had worked out beautifully. He sold the shares the next month, turning that $1.25 million profit.

Hung’s spokesperson pointed out that, taking into account all of the Clovis options he sold that year, Hung actually lost about $100,000. The time horizon for some of the contracts was much longer, with expiration dates into the following year. Hung, he said, held on to some of his contracts and ultimately lost money when the price of Clovis shares declined significantly a few months later. The spokesperson also said that someone trying to capitalize on nonpublic information could do so more efficiently by buying shares in a company rather than through a complicated series of options trades.

ProPublica described Hung’s options dealing in Clovis, without revealing his identity, to Dan Taylor, a professor at the Wharton School and a leading insider-trading expert. “The trades in question seem at best highly unethical and at worst they may be illegal,” Taylor said. “I would caution any and all executives from engaging in the behavior described here. There's significant legal jeopardy if that behavior was brought to the attention of regulators.”

Harry Sloan did not make his name in the health care industry. He came to prominence in Hollywood.

But in 2017 Sloan made a sizable bet on Juno Therapeutics, a Seattle-based biopharma company focused on cancer treatments.

Sloan had never personally invested in Juno before. There’s also no sign in his tax records, which span the years 1999 to 2019, that he purchased options to invest in other companies.

But on Dec. 14 and 15, 2017, he did both for the first time in ProPublica’s tax data. He bought more than a quarter-million dollars of Juno call options, a contract giving him the right to buy the stock at a specific price. The options were “out of the money,” meaning the price was well over what the stock was trading at at the time. The bet would pay off only if Juno stock jumped significantly.

Options, especially out-of-the-money options like the ones Sloan bought, are risky but can carry huge rewards. You can win big if the stock price rises above the purchase price set by the contract. If Amazon stock sells for $125 a share, an option to buy a share at $130 is worthless at the expiration date unless the market price jumps above $130. If Amazon stays at $125, you’ve spent money for nothing. But if it soars to $175 a share, you stand to make a lot from a small investment.

Sloan’s timing proved prescient. The public didn’t know it yet, but December 2017 was a hugely significant moment in Juno’s history. The company had been privately negotiating to sell itself to Celgene, a leader in the field of cancer treatments. On the same days that Sloan bought his options, Celgene significantly raised its offer and Juno agreed to be taken over.

When The Wall Street Journal broke the news of the imminent acquisition a month later, Juno’s share price skyrocketed from $46 a share to $69, its largest one-day increase ever, and Sloan quickly cashed in. He sold much of his first tranche of options for $677,000. In two decades of records, it was the largest sale he’d made in a security of a company where he hadn’t been an insider.

In all, he claimed more than $1.1 million in profit from his Juno trades, a 450% return on the cost of his options.

Of the 251 trading days in 2017, there were only a dozen other days where Sloan could have purchased options and seen the stock’s price increase as much as it ultimately did over the short period he held the bulk of his position.

Through a spokesperson, Sloan, who has been a prominent fundraiser for presidential candidates on both sides of the aisle, declined to answer questions from ProPublica, instead providing a brief statement: “Any insinuation of unethical or improper activity here is false, and contrary to the reputation Mr. Sloan has developed over the course of his lifetime.”

ProPublica provided an anonymized description of Sloan’s trades to a former SEC commissioner, two former SEC attorneys and two leading insider trading academics. All five said this sort of fact pattern could draw scrutiny from regulators because of how well-timed the trades were, and how anomalous compared to Sloan’s trades before and after.

"If you see out-of-the-money call options, no prior history of trading in that name, excellent timing and a large profit, generally yes, I would expect that to draw attention from regulators," former SEC Commissioner Allison Herren Lee said.

A remarkably timed trade may be even more suspicious, she said, if a trader had some sort of personal tie to the niche industry the company is in.

Though much of his career was in Hollywood — Sloan had been an entertainment lawyer and eventually became CEO of Metro-Goldwyn-Mayer — he is not without his connections to biotech and the subsector Juno was in. Sloan knew Arie Belldegrun, one of the leaders in the field of “CAR T-cell” therapy, a novel cancer treatment in which human cells are modified to attack cancer cells. It is the same niche that Juno specialized in. Sloan and Belldegrun were both active in art philanthropy, backing the same Los Angeles art museum at least as far back as 2013; Belldegrun’s wife co-hosted a VIP screening in 2011 for a movie produced by Sloan’s wife. And Sloan donated $3.2 million to Belldegrun’s lab at UCLA in 2017.

Belldegrun was previously CEO of Kite Pharma, a Juno competitor, before selling his company just months before Juno was acquired. Around the time that Sloan was investing in Juno call options, Belldegrun was starting a new CAR-T company. (Four years later, in 2021, Sloan helped take public a biological engineering firm called Ginkgo Bioworks. One of his partners in that venture was Belldegrun.)

There is no evidence that Sloan and Belldegrun ever discussed Juno. Belldegrun did not respond to repeated requests for comment.

Robert Stiller made his fortune off smoking paraphernalia and coffee. He helped launch E-Z Wider, rolling papers used for joints and cigarettes, before founding Green Mountain Coffee Roasters, the multibillion-dollar company that helped popularize K-Cup coffee pods. That role propelled him to business celebrity, as Forbes declared him “entrepreneur of the year” in 2001.

After Stiller left Green Mountain, he served as chairman of the board of AgNovos, a bone health startup. There, the board Stiller led hired a special adviser: Stephen MacMillan, an experienced medical technologies executive. By the end of 2013, MacMillan was named CEO of Hologic, another medical technology company, but he stayed on at AgNovos as a special adviser to Stiller.

Within a few months, Stiller began investing in Hologic for the first time — and aggressively.

On 33 days between March 2014 and January 2015, he bought a total of $9.8 million in call options in MacMillan’s company. Each was a win, netting him a combined $29 million in profit, almost a 300% return. Stiller’s tax records show no indication that he purchased options in companies other than Hologic and Green Mountain from 1999 to 2019.

The rise in Hologic’s share price was driven largely by revenue growth from its innovative line of mammogram devices, which are more effective than standard breast scans because they provide a three-dimensional view that helps reveal smaller tumors before they’ve grown. The company began reporting particularly strong growth from that product line in late April 2014, after Stiller’s first purchases. The excitement around the product grew from there, as the line continued to beat Wall Street’s revenue expectations and more studies affirmed its effectiveness. The company would have noticed orders picking up months before revenue numbers were announced, according to an industry expert who asked not to be named to avoid antagonizing industry contacts.

Stiller began buying call options in early March.

Reached by phone, Stiller said he invested in Hologic because he had confidence in MacMillan, but said MacMillan never shared detailed information about the company’s inner workings with him. “I would ask him, ‘How are things going?’ and he’d say, ‘Good,’” Stiller said. (MacMillan did not respond to requests for comment.)

Stiller said he thought he had purchased options in other companies during that period as well, but couldn’t name examples. He said he might have also bought shares of Hologic in addition to options, though he didn’t know when.

He acknowledged that buying call options in a company run by someone he knew, before it announced good news, “might not look good” and said that in retrospect he might have refrained. “I always have acted under the highest ethical shit, and I understand insider trading, and I would never do it, and I would never ask anybody else to do it,” Stiller said. “It’s just not in my DNA.”

Even by Stiller’s account of his discussions with MacMillan, his trades risked running afoul of the law. ProPublica described Stiller’s trades, without identifying him, to Chip Loewenson, a longtime white-collar defense attorney who has handled insider trading cases.

“What you described sounds like it could be insider trading,” Loewenson said. “Even if you take his word for it, that all he asked is how it’s going, and he says it’s going well, that could be material nonpublic information.” As Loewenson described it, a one-word answer about how a company is faring could be polite chitchat — or it could carry meaning. “Is that something a reasonable investor would want to know? If you think you're getting an honest answer, yes.”

In 2018, Jim Mullen, a veteran biopharma executive who previously was CEO of biotech powerhouse Biogen and chairman of the Biotechnology Innovation Organization, became chairman of the board of Editas Medicine, a firm based in Cambridge, Massachusetts, that uses gene editing techniques to treat rare diseases. (Mullen stepped down earlier this month after his term ended.) The publicly traded company collaborates with Celgene to use its technology to develop cancer therapies.

Mullen’s tax records show he had unsuccessfully traded in and out of Celgene before in relatively small amounts, but on Dec. 18, 2018, he made his biggest purchase ever of the company’s shares: $73,000 worth, almost as much as all his other past purchases combined.

His timing was excellent.

Celgene was at the time in secret negotiations to be acquired by pharma giant Bristol Myers Squibb. The day before Mullen bought the shares, Celgene had expanded the circle of people who knew about the takeover talks. According to subsequent SEC filings, Celgene informed an unidentified pharma company about the potential acquisition in hopes of soliciting a higher competing bid. The action also raised the risk that the secret talks might leak. (The company that was approached, which would have had to be orders of magnitude bigger than Editas to consider buying Celgene, declined to make a competing offer.)

The next day — the same day Mullen bought shares in Celgene — Celgene’s executive committee decided to move forward with Bristol Myers.

Two weeks after Mullen’s purchase, the deal was announced, sending Celgene’s shares soaring, and ultimately earning Mullen $46,000 in profit and a return of more than 60%.

Mullen and Editas did not respond to requests for comment.

Get in touch

ProPublica plans to continue reporting on the stock trading of the wealthy. If you have information about the executives mentioned in this article, or others trading in companies they have ties to, please get in touch. Robert Faturechi can be reached by email at robert.faturechi@propublica.org and by Signal or WhatsApp at 213-271-7217. Ellis Simani can be reached by email at ellis.simani@propublica.org or by Signal at 253-237-3458.

Data background and limitations

When an investor sells stocks, bonds or other securities through a broker, the firm is generally required to issue a tax form called a 1099-B, which describes the asset sold, the proceeds from the sale and the date the sale occurred. The brokerage provides copies of the 1099-B both to the investor and to the IRS. ProPublica’s universe of trades was drawn from tens of millions of these records, part of a larger set of records that formed the basis of ProPublica’s series “The Secret IRS Files.”

ProPublica’s database does not include a complete picture of all trades made by or for investors. Investments made through a separate legal entity like a partnership, for example, are not included. Additionally, 1099-B forms are produced when an asset is sold, not when it is purchased. Many records, however, did list the date the securities were acquired, so ProPublica’s reporters were often able to see a portion of an investor's purchasing activity. Securities that were purchased but not sold until recently are not included in the data.

The dataset spans roughly two decades. Trades from more recent years generally include more information because disclosure requirements have increased over the years. That additional detail allowed ProPublica to better determine how successful the individuals in our data were in the stock market. For stock bought before 2011, brokers were required to report the date it was sold and the total proceeds it generated but not the price paid.

Not all options transactions have to be reported. Purchased options bestow the right to buy or sell shares at a certain price. If they’re successful, they can be closed out in one of two ways. Instead of actually buying or selling the shares, the holder can opt for a cash payment, a common method that is supposed to be explicitly labeled as such in the type of tax forms ProPublica reviewed. Or the holder can buy the shares at the discounted price. That kind of transaction would only be reported to the IRS once the shares are sold, and when they are, they are not required to be listed as shares originally received as part of an option payout.

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Paul Kiel and Jeff Ernsthausen contributed reporting, and Doris Burke contributed research.

by Jessica Lussenhop

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.

On Thursday, the U.S. Supreme Court upheld the 1978 Indian Child Welfare Act. The decision, by a 7-2 vote, meant that the law will continue to require giving preference to placing adoptable Native American children with Native families.

Kathryn Fort, director of the Indian Law Clinic at the Michigan State University College of Law, represented tribes who appealed after a federal judge in Texas declared ICWA unconstitutional in 2018. She’d spent months anticipating that the Supreme Court would make major changes to the law or even dismantle it.

“I was stunned,” said Fort the day after the decision.

Some legal observers noted that because the justices did not resolve the racial bias claim in the case, which is officially known as Haaland v. Brackeen, the door is open for a future challenge on those grounds. Fort said that’s nothing new.

“This was their best shot at a case,” she said, referring to ICWA opponents. “The messaging has really come through that people who are removing Native children from their family and culture, you're not doing good things for Native people.”

Although the Supreme Court let the law stand, Fort has nonetheless spent a lot of time thinking about how ICWA could be made to work better. A ProPublica investigation published the morning of the decision suggests that the law is unevenly applied across the states. The story profiled the case of Cheyenne Hinojosa, a Native American mother in South Dakota who lost her parental rights for one of her children due to the child welfare agency’s failure to follow ICWA. A ProPublica analysis found that in South Dakota, more than 700 Native American children — or about one of every 40 living in the state — experienced the termination of their parents’ rights from 2017 to 2021. It’s one of the highest rates in the country.

Kathryn Fort, director of the Indian Law Clinic at the Michigan State University College of Law (courtesy of Kathryn Fort)

Fort said that ProPublica’s findings were “unsurprising” and that there are a number of things that can be done at both the state and federal levels to try to fortify ICWA’s protections and help achieve its authors’ intent “to prevent the breakup of Indian families.”

1. Better data

Fort said the federal government has never properly tracked whether states are complying with ICWA. The Adoption and Foster Care Analysis and Reporting System is the only national dataset that describes outcomes of the child welfare system, but it doesn’t collect information about whether children are covered by ICWA.

AFCARS also doesn’t track whether components of the law are being correctly applied, or if children in state custody are being placed in Native American households. Without this data, Fort said, it’s impossible to “understand where the holes are that need patching in the country.”

In 2016, the Obama administration finalized a new rule that would have changed the collection method for AFCARS data, which for the first time would have included a category for tribal citizenship, Fort said. Along with this and dozens of new data points, the changes would have made it possible to track trends in the outcome of ICWA-eligible cases. The Trump administration withdrew those updated guidelines, and ever since then Fort’s clients have been involved in a lawsuit that argues the decision was unjustified.

According to Fort, the lawsuit is pending in a federal court of appeals while the Biden administration mulls how to proceed.

“Obviously, given that we spent over 10 years getting the 2016 rule, it’s a little frustrating that we’d have to essentially have to go through that process again,” she said.

2. Rethinking the Adoption and Safe Families Act

One issue that affects not just ICWA cases but the entire child welfare system is the impact of the 1997 Adoption and Safe Families Act. The law created strict timelines to reduce the amount of time children spend in foster care, allowing them to be adopted more quickly. Once 15 months have passed since a child has been removed from a parent, child welfare agencies in most cases must file for termination of parental rights.

A termination is the legal end to a parent’s relationship with their children.

ASFA has had a huge influence on the system. According to a recent study, the risk of a child in the U.S. having the legal relationship with their parents severed during childhood roughly doubled from 2000 to 2016.

Over the years, Fort said, ASFA has frequently collided in court with ICWA; the two laws have almost opposite intentions. ICWA asks states to go above and beyond to keep Native American parents and children together, while ASFA incentivizes speedy decisions to permanently separate them.

Last year, a ProPublica investigation found that in some states, parents can permanently lose their children in as little as six months. The story documented a rising movement among advocates and policymakers — including a former U.S. Department of Health and Human Services official for the Trump administration — to overhaul or repeal ASFA.

Central to that movement is an interest in lengthening the 15-month timeline, which opponents say was a politically negotiated window rather than a science- or policy-backed timeline.

“It was a mistake,” said Fort, who added that not only does she believe that ASFA is bad for Native American children, but “I don’t think it’s good for any children.”

3. Codifying ICWA into state laws

In the lead-up to the Supreme Court decision, advocates pushed legislatures across the country to put the tenets of ICWA into state law, preserving at least some protections on the local level if the federal law were struck down. Several states introduced ICWA-like bills, and four passed. Today, 13 states have such laws on the books.

In the last session, South Dakota’s state legislature failed to pass several ICWA-related measures, in part because lawmakers said they should wait until after the Supreme Court’s decision.

“I think it’s helpful to have a decision like this just reinforcing to states that this is not going away,” said Fort.

She said she hopes the work to pass state laws will continue, and also that states will make ICWA training for child welfare workers a priority.

4. Money for tribal ICWA departments

While ICWA gives tribes many legal powers, their ability to act is tied to resources. Some tribes have healthy economies and well-staffed ICWA units; smaller, poorer tribes may not. For instance, Hinojosa is a member of the Lower Brule Sioux Tribe in central South Dakota, which employs a single ICWA coordinator and does not currently have an attorney.

Lack of funding renders parts of ICWA moot: Tribes may have to be selective when deciding which child welfare cases to intervene in or take jurisdiction over. Even if a tribe has only a small population living on its reservation, it may have thousands of members all over the country who could potentially ask for tribal involvement in child welfare matters.

Fort said there are also “frustrating funding barriers” that may provide an incentive for a Native American family to oppose having its case moved to tribal court. Keeping the case in state court can unlock federal foster care reimbursements for a child’s relative that the tribal child welfare system can’t match.

According to Fort, the federal government has underfunded ICWA since the start. In 1977, Congress estimated that fully funding ICWA programming on reservations would cost between $26 million and $62 million per year, or about $200 million to $500 million in 2021 dollars, Fort said. In 2020, the federal Bureau of Indian Affairs ICWA program sent a total of $14.4 million to tribes nationwide.

“There’s a lot of room for advocacy in Congress to increase the funding to tribal social service systems,” said Fort. “It’s not been a priority for the federal government in years past.”

by Justin Elliott, Joshua Kaplan, Alex Mierjeski

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

In early July 2008, Samuel Alito stood on a riverbank in a remote corner of Alaska. The Supreme Court justice was on vacation at a luxury fishing lodge that charged more than $1,000 a day, and after catching a king salmon nearly the size of his leg, Alito posed for a picture. To his left, a man stood beaming: Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes.

Singer was more than a fellow angler. He flew Alito to Alaska on a private jet. If the justice chartered the plane himself, the cost could have exceeded $100,000 one way.

In the years that followed, Singer’s hedge fund came before the court at least 10 times in cases where his role was often covered by the legal press and mainstream media. In 2014, the court agreed to resolve a key issue in a decade-long battle between Singer’s hedge fund and the nation of Argentina. Alito did not recuse himself from the case and voted with the 7-1 majority in Singer’s favor. The hedge fund was ultimately paid $2.4 billion.

Alito did not report the 2008 fishing trip on his annual financial disclosures. By failing to disclose the private jet flight Singer provided, Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts.

Experts said they could not identify an instance of a justice ruling on a case after receiving an expensive gift paid for by one of the parties.

“If you were good friends, what were you doing ruling on his case?” said Charles Geyh, an Indiana University law professor and leading expert on recusals. “And if you weren’t good friends, what were you doing accepting this?” referring to the flight on the private jet.

Justices are almost entirely left to police themselves on ethical issues, with few restrictions on what gifts they can accept. When a potential conflict arises, the sole arbiter of whether a justice should step away from a case is the justice him or herself.

ProPublica’s investigation sheds new light on how luxury travel has given prominent political donors — including one who has had cases before the Supreme Court — intimate access to the most powerful judges in the country. Another wealthy businessman provided expensive vacations to two members of the high court, ProPublica found. On his Alaska trip, Alito stayed at a commercial fishing lodge owned by this businessman, who was also a major conservative donor. Three years before, that same businessman flew Justice Antonin Scalia, who died in 2016, on a private jet to Alaska and paid the bill for his stay.

Such trips would be unheard of for the vast majority of federal workers, who are generally barred from taking even modest gifts.

Leonard Leo, the longtime leader of the conservative Federalist Society, attended and helped organize the Alaska fishing vacation. Leo invited Singer to join, according to a person familiar with the trip, and asked Singer if he and Alito could fly on the billionaire’s jet. Leo had recently played an important role in the justice’s confirmation to the court. Singer and the lodge owner were both major donors to Leo’s political groups.

ProPublica’s examination of Alito’s and Scalia’s travel drew on trip planning emails, Alaska fishing licenses, and interviews with dozens of people including private jet pilots, fishing guides, former high-level employees of both Singer and the lodge owner, and other guests on the trips.

ProPublica sent Alito a list of detailed questions last week, and on Tuesday, the Supreme Court’s head spokeswoman told ProPublica that Alito would not be commenting. Several hours later, The Wall Street Journal published an op-ed by Alito responding to ProPublica’s questions about the trip.

Alito said that when Singer’s companies came before the court, the justice was unaware of the billionaire’s connection to the cases. He said he recalled speaking to Singer on “no more than a handful of occasions,” and they never discussed Singer’s business or issues before the court.

Alito said that he was invited to fly on Singer’s plane shortly before the trip and that the seat “​​would have otherwise been vacant.” He defended his failure to report the trip to the public, writing that justices “commonly interpreted” the disclosure requirements to not include “accommodations and transportation for social events.”

In a statement, a spokesperson for Singer told ProPublica that Singer didn’t organize the trip and that he wasn’t aware Alito would be attending when he accepted the invitation. Singer “never discussed his business interests” with the justice, the spokesperson said, adding that at the time of trip, neither Singer nor his companies had “any pending matters before the Supreme Court, nor could Mr. Singer have anticipated in 2008 that a subsequent matter would arise that would merit Supreme Court review.”

Leo did not respond to questions about his organizing the trip but said in a statement that he “would never presume to tell” Alito and Scalia “what to do.”

Leonard Leo, center, on the 2008 fishing trip with a guide and other guests. Leo attended and helped organize the Alaska fishing vacation. (Photo obtained by ProPublica)

This spring, ProPublica reported that Justice Clarence Thomas received decades of luxury travel from another Republican megadonor, Dallas real estate magnate Harlan Crow. In a statement, Thomas defended the undisclosed trips, saying unnamed colleagues advised him that he didn’t need to report such gifts to the public. Crow also gave Thomas money in an undisclosed real estate deal and paid private school tuition for his grandnephew, who Thomas was raising as a son. Thomas reported neither transaction on his disclosure forms.

The undisclosed gifts have prompted lawmakers to launch investigations and call for ethics reform. Recent bills would impose tighter rules for justices’ recusals, require the Supreme Court to adopt a binding code of conduct and create an ethics body, which would investigate complaints. Neither a code nor an ethics office currently exists.

“We wouldn’t tolerate this from a city council member or an alderman,” Sen. Dick Durbin, an Illinois Democrat and chair of the Senate Judiciary Committee, said of Thomas in a recent hearing. “And yet the Supreme Court won’t even acknowledge it’s a problem.”

So far, the court has chafed at the prospect of such reforms. Though the court recently laid out its ethics practices in a statement signed by all nine justices, Chief Justice John Roberts has not directly addressed the recent revelations. In fact, he has repeatedly suggested Congress might not have the power to regulate the court at all.

“We Take Good Care of Him Because He Makes All the Rules”

In the 1960s in his first year at Harvard Law School, Singer was listening to a lecture by a famed liberal professor when, he later recalled, he had an epiphany: “My goodness. They’re making it up as they go along.”

It was a common sentiment among conservative lawyers, who often accuse liberal judges of activist overreach. While Singer’s career as an attorney was short-lived, his convictions about the law stayed with him for decades. After starting a hedge fund that eventually made him one of the richest people in the country, he began directing huge sums to causes on the right. That included groups, like the Federalist Society, dedicated to fostering the conservative legal movement and putting its followers on the bench.

In the last decade, Singer has contributed over $80 million to Republican political groups. He has also given millions to the Manhattan Institute, a conservative think tank where he has served as chairman since 2008. The institute regularly files friend-of-the-court briefs with the Supreme Court — at least 15 this term, including one asking the court to block student loan relief.

Singer’s interest in the courts is more than ideological. His hedge fund, Elliott Management, is best known for making investments that promise handsome returns but could require bruising legal battles. Singer has said he’s drawn to positions where you “control your own destiny, not just riding up and down with the waves of financial markets.” That can mean pressuring corporate boards to fire a CEO, brawling with creditors over the remains of a bankrupt company and suing opponents.

The fund now manages more than $50 billion in assets. “The investments are extremely shrewdly litigation-driven,” a person familiar with Singer’s fund told ProPublica. “That’s why he’s a billionaire.”

Singer’s most famous gamble eventually made its way to the Supreme Court.

In 2001, Argentina was in a devastating economic depression. Unemployment skyrocketed and deadly riots broke out in the street. The day after Christmas, the government finally went into default. For Singer, the crisis was an opportunity. As other investors fled, his fund purchased Argentine government debt at a steep discount.

Within several years, as the Argentine economy recovered, most creditors settled with the government and accepted a fraction of what the debt was originally worth. But Singer’s fund, an arm of Elliott called NML Capital, held out. Soon, they were at war: a midtown Manhattan-based hedge fund trying to impose its will on a sovereign nation thousands of miles away.

The fight played out on familiar turf for Singer: the U.S. courts. He launched an aggressive legal campaign to force Argentina to pay in full, and his personal involvement in the case attracted widespread media attention. Over 13 years of litigation, the arguments spanned what rights foreign governments have in the U.S. and whether Argentina could pay off debts to others before Singer settled his claim.

If Singer succeeded, he stood to make a fortune.

In 2007, for the first but not the last time, Singer’s fund asked the Supreme Court to intervene. A lower court had stopped Singer and another fund from seizing Argentine central bank funds held in the U.S. The investors appealed, but that October, the Supreme Court declined to take up the case.

On July 8 of the following year, Singer took Alito to Alaska on the private jet, according to emails, flight data from the Federal Aviation Administration and people familiar with the trip.

The group flew across the country to the town of King Salmon on the Alaska peninsula. They returned to the East Coast three days later.

In Alaska, they stayed at the King Salmon Lodge, a luxury fishing resort that drew celebrities, wealthy businessmen and sports stars. On July 9, one of the lodge’s pilots flew Alito and other guests around 70 miles to the west to fish the Nushagak River, known for one of the best salmon runs in the world. Snapshots from the trip show Alito in waders and an Indianapolis Grand Prix hat, smiling broadly as he holds his catch.

“Sam Alito is in the red jacket there,” one lodge worker said, as he narrated an amateur video of the justice on the water. “We take good care of him because he makes all the rules.”

Alito in Alaska with a fishing guide. He stayed at the King Salmon Lodge, a luxury fishing resort that drew celebrities, wealthy businessmen and sports stars. (Photo obtained by ProPublica)

Other guests on the trip included Leo, the Federalist Society leader, and Judge A. Raymond Randolph, a prominent conservative appellate judge for whom Leo had clerked, according to fishing licenses and interviews with lodge staff.

On another day, the group flew on one of the lodge’s bush planes to a waterfall in Katmai National Park, where bears snatch salmon from the water with their teeth. At night, the lodge’s chefs served multicourse meals of Alaskan king crab legs or Kobe filet. On the last evening, a member of Alito’s group bragged that the wine they were drinking cost $1,000 a bottle, one of the lodge’s fishing guides told ProPublica.

In his op-ed, Alito described the lodge as a “comfortable but rustic facility.” The justice said he does not remember if he was served wine, but if he was, it didn’t cost $1,000 a bottle. (Alito also pointed readers to the lodge’s website. The lodge has been sold since 2008 and is now a more downscale accommodation.)

The justice’s stay was provided free of charge by another major donor to the conservative legal movement: Robin Arkley II, the owner of a mortgage company then based in California. Arkley had recently acquired the fishing lodge, which catered to affluent tourists seeking a luxury experience in the Alaskan wilderness. A planning document prepared by lodge staff describes Alito as a guest of Arkley. Another guest on the trip told ProPublica the trip was a gift from Arkley, and two lodge employees said they were told that Alito wasn’t paying.

Arkley, who does not appear to have been involved in any cases before the court, did not respond to detailed questions for this story.

On the 2008 trip, the group visited Katmai National Park. (Mike Lyvers/Getty Images)

Alito did not disclose the flight or the stay at the fishing lodge in his annual financial disclosures. A federal law passed after Watergate requires federal officials including Supreme Court justices to publicly report most gifts. (The year before, Alito reported getting $500 of Italian food and wine from a friend, noting that his friend was unlikely to “appear before this Court.”)

The law has a “personal hospitality” exemption: If someone hosts a justice on their own property, free “food, lodging, or entertainment” don’t always have to be disclosed. But the law clearly requires disclosure for gifts of private jet flights, according to seven ethics law experts, and Alito appears to have violated it. The typical interpretation of the law required disclosure for his stay at the lodge too, experts said, since it was a commercial property rather than a vacation home. The judiciary’s regulations did not make that explicit until they were updated earlier this year.

In his op-ed, Alito said that justices “commonly interpreted” the law’s exception for hospitality “to mean that accommodations and transportation for social events were not reportable gifts.”

His op-ed pointed to language in the judiciary’s filing instructions and cited definitions from Black’s Law Dictionary and Webster’s. But he did not make reference to the judiciary’s regulations or the law itself, which experts said both clearly required disclosure for gifts of travel. ProPublica found at least six examples of other federal judges disclosing gifts of private jet travel in recent years.

Singer and Alito appeared together at a 2009 Federalist Society event. (The Federalist Society 2009 Annual Report)

“The exception only covers food, lodging and entertainment,” said Virginia Canter, a former government ethics lawyer now at the watchdog group CREW. “He’s trying to move away from the plain language of the statute and the regulation.”

The Alaska vacation was the first time Singer and Alito met, according to a person familiar with the trip. After the trip, the two appeared together at public events. When Alito spoke at the annual dinner of the Federalist Society lawyers convention the following year, the billionaire introduced him. The justice told a story about having an encounter with bears during a fishing trip with Singer, according to the legal blog Above the Law. He recalled asking himself: “Do you really want to go down in history as the first Supreme Court justice to be devoured by a bear?”

The year after that, in 2010, Alito delivered the keynote speech at a dinner for donors to the Manhattan Institute. Once again, Singer delivered a flattering introduction. “He and his small band of like-minded justices are a critical and much-appreciated bulwark of our freedom,” Singer told the crowd. “Samuel Alito is a model Supreme Court justice.”

Meanwhile, Singer and Argentina kept asking the Supreme Court to intervene in their legal fight. His fund enlisted Ted Olson, the famed appellate lawyer who represented George W. Bush in the Bush v. Gore case during the 2000 presidential election.

In January 2010, a year and a half after the Alaska vacation, the fund once again asked the high court to take up an aspect of the dispute. The court declined. In total, parties asked the court to hear appeals in the litigation eight times in the six years after the trip. In most instances, it was Singer’s adversaries filing an appeal, with Singer’s fund successfully arguing for the justices to decline the case and let stand a lower court ruling.

The Supreme Court hears a tiny portion of the many cases it’s asked to rule on each year. Under the court’s rules, cases are only accepted when at least four of the nine justices vote to take it up. The deliberations on whether to take a case are shrouded in secrecy and happen at meetings attended only by the justices. These decisions are a fundamental way the court wields power. The justices’ votes are not typically made public, so it is unclear how Alito voted on the petitions involving Singer.

As Singer’s battle with Argentina intensified, his hedge fund launched an expansive public relations and lobbying campaign. In 2012, the hedge fund even attempted to seize an Argentine navy ship docked in Ghana to secure payment from the country. (The effort was thwarted by a ruling from the International Tribunal for the Law of the Sea.) Argentina’s president labeled Singer and his fellow investors “vultures” attempting extortion; Singer complained the country was scapegoating him.

In 2014, the Supreme Court finally agreed to hear a case on the matter. It centered on an important issue: how much protection Argentina could claim as a sovereign nation against the hedge fund’s legal maneuvers in U.S. courts. The U.S. government filed a brief on Argentina’s side, warning that the case raised “extraordinarily sensitive foreign policy concerns.”

The case featured an unusual intervention by the Judicial Crisis Network, a group affiliated with Leo known for spending millions on judicial confirmation fights. The group filed a brief supporting Singer, which appears to be the only Supreme Court friend-of-the-court brief in the organization’s history.

The court ruled in Singer’s favor 7-1 with Alito joining the majority. The justice did not recuse himself from the case or from any of the other petitions involving Singer.

“The tide turned” thanks to that “decisive” ruling and another from the court, as Singer’s law firm described it. After the legal setbacks and the election of a new president in Argentina, the country finally capitulated in 2016. Singer’s fund walked away with a $2.4 billion payout, a spectacular return.

Abbe Smith, a law professor at Georgetown who co-wrote a textbook on legal and judicial ethics, said that Alito should have recused himself. If she were representing a client and learned the judge had taken a gift from the party on the other side, Smith said, she would immediately move for recusal. “If I found out after the fact, I’d be outraged on behalf of my client,” she said. “And, frankly, I’d be outraged on behalf of the legal system.”

The law that governs when justices must recuse themselves from a case sets a high but subjective standard. It requires justices to withdraw from any case when their “impartiality might reasonably be questioned.” But the court allows individual justices to interpret that requirement for themselves. Historically, they’ve almost never explained why they are or are not recusing themselves, and unlike lower court judges, their decisions cannot be appealed.

Alito articulated his own standard during his Senate confirmation process, writing that he believed in stepping away from cases when “any possible question might arise.”

In his Wall Street Journal op-ed, Alito wrote of his failure to recuse himself from Singer’s cases at the court: “It was and is my judgment that these facts would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially.”

Critics have long assailed the Supreme Court’s practices on this issue as both opaque and inconsistent. “The idea ‘just trust us to do the right thing’ while remaining in total secrecy is unworkable,” said Amanda Frost, a judicial ethics expert at the University of Virginia School of Law.

For Singer, appeals to the Supreme Court are an almost unavoidable result of his business model. Since the Argentina case, Singer’s funds were named parties in at least two other cases that were appealed to the court, both stemming from battles with Fortune 500 companies. One of the petitions is currently pending.

Grey Goose and Glacier Ice

The month after Singer got home from the 2008 fishing trip, he realized he had a problem. He was supposed to receive a shipment of frozen salmon from the Alaska lodge. But the fish hadn’t arrived. So the billionaire emailed an unlikely person to get to the bottom of it: Leo, the powerful Federalist Society executive.

“They've escaped!!” Singer wrote. Leo then sent an email to Arkley, the lodge owner, to track down the missing seafood.

The only clear thread connecting the prominent guests on the trip is that they all had a relationship with Leo. Leo is now a giant in judicial politics who helped handpick Donald Trump’s list of potential Supreme Court nominees and recently received a $1.6 billion donation to further his political interests. Leo’s network of political groups was in its early days, however, when he traveled with Alito to Alaska. It had run an advertising campaign supporting Alito in his confirmation fight, and Leo was reportedly part of the team that prepared Alito for his Senate hearings.

Singer and Arkley, the businessmen who provided the trip to the justice, were both significant donors to Leo’s groups at the time, according to public records and reporting by The Daily Beast. Arkley also sometimes provided Leo with one of his private planes to travel to business meetings, according to a former pilot of Arkley’s.

In his statement, Leo did not address detailed questions about the trip, but he said “no objective and well-informed observer of the judiciary honestly could believe that they decide cases in order to cull favor with friends, or in return for a free plane seat or fishing trip.”

He added that the public should wonder whether ProPublica’s coverage is “bait for reeling in more dark money from woke billionaires who want to damage this Supreme Court and remake it into one that will disregard the law by rubber stamping their disordered and highly unpopular cultural preferences.”

Arkley is a fixture in local politics in his hometown of Eureka, California, known for lashing out at city officials and for once starting his own newspaper reportedly out of disdain for the local press. By the early 2000s, he’d made a fortune buying and servicing distressed mortgages and also become a significant donor in national GOP politics.

Rob Arkley in 2013 (Andrew Goff/Lost Coast Outpost)

As his political profile rose, Arkley bragged to friends that he’d gotten to know one-third of the sitting Supreme Court justices. He told friends he had a relationship with Clarence Thomas, according to two people who were close with Arkley. And the Alito trip was not Arkley’s first time covering a Supreme Court justice’s travel to Alaska.

In June 2005, Arkley flew Scalia on his private jet to Kodiak Island, Alaska, two of Arkley’s former pilots told ProPublica. Arkley had paid to rent out a remote fishing lodge that cost $3,200 a week per person, according to the lodge’s owner, Martha Sikes.

Snapshots from the trip, found in the justice’s papers at Harvard Law School, capture Scalia knee-deep in a river as he fights to reel in a fish. Randolph, the appellate judge who was also on the later trip, joined Scalia and Arkley on the vacation, flying on the businessman’s jet.

Left: Justice Antonin Scalia in Alaska with Judge A. Raymond Randolph. Right: Scalia fishing in Alaska. (Harvard Law School Library, Historical & Special Collections)

Scalia did not report the trip on his annual filing, another apparent violation of the law, according to ethics law experts. Scalia’s travels briefly drew scrutiny in 2016 after he died while staying at the hunting ranch of a Texas businessman. Scalia had a pattern of disclosing trips to deliver lectures while not mentioning hunting excursions he took to nearby locales hosted by local attorneys and businessmen, according to a research paper published after his death.

Randolph, now a senior judge on the U.S. Court of Appeals for the D.C. Circuit, did not disclose the trip. (Nor did he disclose the later trip with Alito.) Randolph told ProPublica that when he was preparing his form for 2005, he called the judiciary’s financial disclosure office to ask about disclosing the trip. He shared his notes from the call with a staffer, which say “don’t have to report trip to Alaska with Rob Arkley & others / private jet / lodge.” Kathleen Clark, an ethics law expert at Washington University in St. Louis, said, “I don’t understand how the staff member came to that conclusion based on the language in the statute.”

On June 9, Arkley’s group chartered a boat, the Happy Hooker IV, to tour Yakutat Bay. On the way over, Scalia and Arkley discussed whether Senate Republicans, then in a contentious fight over judicial confirmations, should abolish the filibuster to move forward, according to a person traveling with them.

A photo captures Arkley and Scalia later that day gazing off the side of the boat at the famed Hubbard Glacier. At one point, a guide chiseled chunks off an iceberg and passed them to Scalia. The justice then mixed martinis from Grey Goose vodka and glacier ice.

It remains unclear how Scalia ended up in Alaska with Arkley. But the justice’s archives at Harvard Law School offer a tantalizing clue. Immediately before the fishing trip, Scalia gave a speech for the Federalist Society in Napa, California. The next day, Arkley’s plane flew from Napa to Alaska. Scalia’s papers contain a folder labeled “Federalist Society, Napa and Alaska, 2005 June 3-10,” suggesting a possible connection between the conservative organization and the fishing trip.

The contents of that folder are currently sealed, however. They will be opened to the public in 2036.

Scalia prepares glacier ice martinis. (Harvard Law School Library, Historical & Special Collections)

Do you have any tips on the Supreme Court? Justin Elliott can be reached by email at justin@propublica.org or by Signal or WhatsApp at 774-826-6240. Josh Kaplan can be reached by email at joshua.kaplan@propublica.org and by Signal or WhatsApp at 734-834-9383.

by Kiah Collier

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

This article is co-published with The Texas Tribune, a nonprofit, nonpartisan local newsroom that informs and engages with Texans. Sign up for The Brief Weekly to get up to speed on their essential coverage of Texas issues.

A year after persuading Texas lawmakers to buy millions of child identification kits that had no proven record of success, a businessman with a troubled history found an in with the state's attorney general.

Last fall, Kenny Hansmire was tapped by Republican Attorney General Ken Paxton to be part of a coalition to combat opioid abuse that Paxton declared would “be the largest drug prevention, education, abatement and disposal campaign in U.S. history.”

Riffing off the name of a popular book about Texas football, Paxton announced the Friday Night Lights Against Opioids coalition and pilot program. The initiative would distribute 3.5 million packets at high school football games that contain a powder capable of destroying opioids when mixed with water.

Paxton didn’t provide a price tag for the effort or explain Hansmire’s exact role, but he said a partnership with the businessman’s National Child Identification Program would be important to the program’s success.

A former NFL player, Hansmire has persuaded leaders in multiple states to spend millions of dollars purchasing inkless fingerprinting kits on the promise that they could help find missing children. Texas alone allocated $5.7 million for kits over the past two years. An investigation published last month by ProPublica and The Texas Tribune found little evidence of the kits’ effectiveness and showed that the company exaggerated missing child statistics in its marketing.

The investigation also revealed that Hansmire has twice pleaded guilty to felony theft and was sanctioned by banking regulators in Connecticut in 2015 for his role in an alleged scheme to defraud or mislead investors.

Paxton has been a key ally for Hansmire. In 2020, he signed a letter to then-President Donald Trump urging him to get behind ultimately unsuccessful legislation that would approve the use of federal money to pay for the child identification kits. Hansmire later honored the attorney general at a Green Bay Packers game for his support.

For the opioid initiative, Paxton worked to connect Hansmire with Texas Comptroller Glenn Hegar, who oversees the distribution of hundreds of millions of dollars the state is set to receive after settling lawsuits with pharmaceutical companies over their roles in the opioid crisis.

Paxton discussed the initiative with Hegar, asking him to speak with its leaders, including Hansmire. On multiple occasions, Hansmire “called Comptroller Hegar to ask for funding for the Friday Night Lights program,” said the comptroller’s spokesperson, Chris Bryan.

Hegar, a Republican former state legislator who served with Paxton in the Texas Senate, declined to entertain Hansmire’s requests and explained that funding decisions will follow a formal approval process that is still being developed, Bryan said. He did not respond to additional questions.

Hansmire’s financial stake in the opioid initiative is unclear. He did not respond to questions about his role or about his requests for funding from the comptroller. He has previously defended himself and his company, asserting that the fingerprinting kits have made a difference in missing child investigations and that he resolved his financial and legal troubles.

Over the years, Hansmire has successfully leveraged his relationships with professional and college football teams in promoting his fingerprinting kits, honoring allied lawmakers and attorneys general at high-profile events such as football games.

While unveiling the opioid program last October, Paxton stood flanked by Hansmire and other former NFL players. Among them: NFL Hall of Famers Mike Singletary, who played for the Chicago Bears, and Randy White, a former Dallas Cowboy. White later participated in the launch of a similar program in Delaware alongside the state’s lieutenant governor. And last month, Mississippi’s attorney general announced the distribution of 500 free “Family Safety Kits.” Each included a child ID kit from Hansmire’s company and a drug disposal packet, which was provided by North Carolina-based DisposeRX. The company, which is also involved in the Texas and Delaware programs, lists Hansmire’s National Child ID Program as an official partner on its website.

Neither Singletary nor representatives for White or DisposeRX responded to requests for comment.

Paxton also did not respond to multiple requests for comment and to detailed questions from ProPublica and the Tribune. The news organizations requested records from Paxton’s office that could show the cost of the opioid initiative, the scope of the work and the breakdown of compensation for the companies involved. In response, the attorney general’s office released some emails, including one that contained an August 2022 letter from Paxton to Hansmire proposing to partner on the initiative. The office has fought the disclosure of other records that include communications with a lawmaker about potential legislation and claimed that it has no record of written agreements or expenditures related to the Friday Night Lights Against Opioids program.

Last month, the attorney general became one of only three state officials in Texas history to be impeached. He has been temporarily suspended while he awaits a trial in the Texas Senate on charges that include bribery, conspiracy and obstruction of justice. (Those charges are not related to the opioid program.)

The impeachment vote in the Texas House was the culmination of a probe by the lower chamber’s General Investigating Committee. In a memorandum, the panel said the inquiry was initiated by Paxton’s request for $3.3 million to cover a negotiated settlement he announced in February with four former top aides.

Those aides sued Paxton in 2020 under the state’s whistleblower law, arguing that they were illegally fired after reporting their boss to the FBI for alleged misdeeds, including bribery and leveraging the power of his office to help a political donor.

Paxton has denied wrongdoing and has dismissed his impeachment as politically motivated.

“Slower Approach”

The week after Paxton announced the proposed settlement of the suit against him, state Sen. Donna Campbell, a New Braunfels Republican, filed a bill that would transfer $10 million to the attorney general from the opioid settlement fund.

Also a supporter of Hansmire’s, Campbell authored legislation in 2021 that led to the approval of $5.7 million to provide child ID kits to elementary and middle school students across the state. (State lawmakers had been set to approve additional money this year to purchase kits, but budget negotiators nixed the funding following publication of the ProPublica-Tribune investigation.)

In this case, Campbell’s bill would direct funding to Paxton that he could use “for the purpose of prevention, education, and drug disposal awareness campaigns to include providing at-home drug disposal kits and abatement tools for children- and youth-focused populations across this state.”

A new 14-member council led by Hegar is responsible for doling out the bulk of the opioid settlement funding, though lawmakers can allocate some of the money through legislation.

A week before Campbell filed her opioid bill, Hansmire’s longtime business partner, Mark Salmans, registered a new company with the state called Friday Night Lights LLC. Little information is publicly available about the company.

Campaign finance records show Salmans has donated $6,500 to Paxton and his wife, state Sen. Angela Paxton, since late 2019. That includes a $1,000 donation to the attorney general the week after the Friday Night Lights Against Opioids announcement. He has not donated to Campbell, according to records from the same time period. Salmans and the Paxtons did not respond to questions about the new entity or their roles in the program.

Campbell also didn’t respond to questions. Her bill, which died in committee, came after both Paxtons publicly criticized Hegar for being slow to distribute the opioid settlement money. Neither Paxton mentioned the Friday Night Lights Against Opioids initiative while doing so.

“My main concern is that if we wait to use that money, we’re missing the opportunity to help people that need the help and we’re missing the opportunity to really save lives,” Ken Paxton said at a hearing in response to questions from Campbell less than two weeks before she filed her bill. Hegar has defended the pace, noting that the nature of the council’s work is unprecedented and that it needs to establish a clear, fair and transparent process to get the money out.

At a legislative hearing in late January, Hegar pointed to the sweeping corruption scandal that plagued the Cancer Prevention and Research Institute of Texas during its first few years as a reason to ensure a more deliberate process. The state agency came under fire a decade ago for doling out tens of millions of dollars in grants to politically connected applicants through a process that lacked proper scientific review. The scandal, which raised concerns about conflicts of interest and lax oversight, resulted in various resignations and reforms.

“The point is, we’re taking a slower approach to make sure we get it right,” Hegar told Angela Paxton. “That entire board was wiped away because the process that was put into place was not very thorough, and all of their reputations were tarnished.”

Opioids and Missing Children

At the October news conference where Paxton announced the Friday Night Lights Against Opioids initiative, Hansmire explained that it would employ the model pioneered by his child identification company, which got its start by distributing kits at college and professional football games.

He also linked the initiative to his child identification company by repeating the incorrect statistic he’s used to promote the company’s fingerprinting kits. Hansmire asserted that, “out of 800,000 children that are reported missing every year, 200,000 of those have an opioid issue.”

He didn’t cite a source for the figures, but they appear to come from an old Department of Justice study that was co-authored by David Finkelhor, the director of the Crimes Against Children Research Center at the University of New Hampshire. Finkelhor previously told ProPublica and the Tribune that the 800,000 figure Hansmire was using from the 24-year-old study was no longer accurate and overstated the scale of the missing children problem, in part because it included children who were missing for benign reasons such as spending the night at a friend’s house or coming home late from school. Using the inflated and outdated figure to then suggest that a quarter of those children have opioid-related problems is simply wrong, Finkelhor said.

The Department of Justice study estimated that 292,000 children who ran away or were kicked out of their homes in 1999 were “using hard drugs.” Finkelhor said the study referred to anything aside from marijuana — not just opioids — as a hard drug. He said he is not aware of anyone who formally tracks “opioid issues” among missing or runaway children.

Experts say that beyond being premised on incorrect statistics, the promotion of disposal packets as a solution for the opioid epidemic is a misguided use of resources, in large part because prescription opioids can be safely disposed of in multiple ways. According to the Food and Drug Administration, the best way to dispose of most medications, including opioids, is to drop them off at a drug take-back site. If that’s not an option, they should either be flushed down the toilet or be thrown in the trash, depending on whether they are on the FDA’s flush list.

Pushing disposal packets is a good way for a politician or legislator “to appear to be addressing the opioid crisis without actually doing anything that would upset industry,” said Dr. Andrew Kolodny, medical director for the Opioid Policy Research Collaborative at Brandeis University.

Paxton and Hansmire didn’t respond to questions about the effectiveness of the packets. But Paxton said during the October news conference that it was his “hope and prayer that this program will aid in fighting the opioid epidemic that has claimed far too many young lives across our great state.”

The attorney general’s original plan was to distribute the 3.5 million disposal packets at high school football programs across Texas in the latter part of last year. But Brian Polk, chief operating officer of the Texas High School Coaches Association, said the inaugural distribution was smaller than envisioned.

Polk, whose organization partnered with Paxton on the initiative, couldn’t remember exact numbers but said in an interview that about 10 school districts received 3,000 packets each. A much larger distribution is expected this fall, but plans are still being finalized, Polk said.

Paxton did not respond to questions about Polk’s comments or whether unsuccessful efforts to tap opioid settlement money contributed to the smaller-than-planned distribution.

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

Jeremy Schwartz, of ProPublica and The Texas Tribune, and Carla Astudillo, of The Texas Tribune, contributed reporting.

by Alec MacGillis

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This story is exempt from our Creative Commons license until Aug. 18, 2023.

Angela Wright became the principal of Fairfield Court Elementary School in Richmond, Virginia, in the fall of 2020, but she didn’t meet her students until a year later. At the start of the pandemic, Richmond had moved all of its 22,000 students to remote learning. By the time they returned to the classroom, in September 2021, after every other school district in the state, it had been 18 months since they’d been inside a school building.

For Wright, the posting at Fairfield Court was the culmination of a steady rise: from instructional assistant to teacher to assistant principal to principal. When her father saw her first monthly paycheck as a teacher, he asked, “Is this for a week?” “He said, ‘Are you sure this is what you want to do?’” she recalled. “I said, ‘Yes.’ When you see kids light up, when you see that they get it, when you see kids who were tier three or lower rise to the top ...”

Wright had previously been a principal in a rural school district, but after arriving in the Richmond system she settled for being an assistant principal for a few years. “Coming into an urban school district, I wanted to step back and take a look at their structure, their processes,” she said. Now she was eager to tackle the challenges facing the student body, which was almost entirely Black. Many of the students lived in an adjoining public-housing development, also called Fairfield Court. But Wright, in her first year, could offer guidance only at a remove. She dropped in on virtual classrooms, where students logged on from their beds or from crowded kitchen tables; often, they were not able to log on at all, because the concrete walls of their home interfered with a Wi-Fi signal. “Sometimes it was just, ‘Oh, it’s not working today,’” she told me.

When the students returned to the school building, Wright found that their needs were far greater than she could have imagined. Research released by Harvard and Stanford last fall found that Richmond’s fourth through eighth graders had lost two full years of ground in math and nearly a year and a half in reading. Even more apparent was their difficulty with basic interactions — fifth graders hadn’t been in person since third grade; second graders, since kinder­garten. “Socialization with each other was huge. How to be around each other — those are building blocks for ages 6 to 10,” Wright said. “There was a whole retraining — what does it look like when you and another student disagree? They had missed that, not being in the building.”

Richmond is a particularly stark example of what education researchers say is a nationwide crisis. Student learning across the country, as measured by many assessments, has stalled to an unprecedented degree. Researchers have pointed to a number of causes, including the trauma experienced by children who lost family members to COVID-19, but the data generally shows that the shortcomings are the greatest in districts that were slowest to reopen schools. It also shows that the falloff was far greater among Black and Hispanic students than among whites and Asians, expanding disparities that had been gradually shrinking in recent decades. “This cohort of students is going to be punished throughout their lifetime,” Eric Hanushek, an economist at Stanford, said at a conference in Arlington, Virginia, in February. He presented findings dem­on­strating that the economic consequences of pandemic-related learning loss could be far greater than those of the Great Recession.

The federal government has sent schools $190 billion in pandemic-recovery funds, and districts are using some of that money for a range of interventions — intensive tutoring, expanded summer school and after-­school programs — though they have been hampered by the shortage of teachers and tutors. Even before the pandemic, Fairfield Court and other schools in the East End of Richmond, which has high levels of poverty, had received additional resources for social workers and for math and reading coaches; the new federal funding was used to provide an extended-day program three days a week for about 40 kids. Wright appreciated the support, but she could see that more would be needed to make up the lost ground.

In Richmond, as in many other districts, the learning-loss debate has centered on time: The greatest challenge is finding extra hours for supplementary instruction. In early 2021, as it became clear that Richmond was not going to reopen its schools that spring, Jason Kamras, the superintendent of schools, shared in online forums the rudiments of a possible remedy: switching to a year-round calendar, with summer vacation limited to July, and four two-week breaks during the school year. Most students would still have 180 school days a year, but the district would select 5,000 students to receive up to 40 days of extra instruction during the breaks. Teachers who volunteered to work would be paid more.

Kamras cited a report issued by staff of the Virginia legislature which indicated that, according to recent research, a year-round calendar produced varied results over all but had clear benefits for Black students. Harris Cooper, a professor of psychology at Duke who has researched the issue, told me that, though most students suffer from a “summer slide” in math, losses in reading are bigger for students from low-income families, possibly because wealthier kids are more likely to have books around at home. He said that it made sense for districts to rethink summer break, which was a vestige of a more agricultural era and longer than in peer nations. “Our school calendar now is out of sync with the way most Americans live,” he said.

Wright, a 57-year-old Black woman, was in favor of the plan. “Having those kids start instruction early, we can get those kids to really feel good about themselves,” she said. “We need to have them here in the building.”

Angela Wright, principal of Fairfield Court Elementary School (Brian Palmer for ProPublica)

Richmond’s school board has been elected by voters since 1994, two years after Virginia became the last state to allow for direct election, rather than appointment, of board members, a system that now prevails in nearly all of the nation’s 13,000 school districts. In recent years, in Florida and elsewhere, school boards have attracted attention for culture-war skirmishes over book choices and instruction about gender and sexuality, but most of them labor in relative obscurity. Supporters of elected school boards see them as safeguards of citizen input into how taxpayer dollars are spent and how children are taught, an exceptional feature of U.S. public education that embodies the principle of local control; detractors view them as bastions of dysfunction, captured by interest groups or lacking the expertise to make decisions about pedagogy. In Richmond, the board’s nine members receive an annual stipend of $10,000; the chair, who is elected by the board, gets an extra $1,000. Meetings are held twice a month, at 6 p.m., and they often run until close to midnight, at which point public attendance, typically sparse to begin with, has dwindled to virtually nothing.

Stephanie Rizzi ran for the board in the fall of 2020. Growing up, she had bounced between her grandmother in Richmond and her mother in Caroline County, north of the city. “I grew up poor and hungry,” Rizzi said. “I can remember being thirsty, not having access to water.” Her solace came at school. “My teachers saved my life,” she said. She attended Virginia Commonwealth University in Richmond and went into education. (She is now an administrator at VCU.) She taught English in three counties, all the while trying to get a position in the Richmond schools, which her children attended. After being unable to get hired by the district, she decided to run for the board that oversaw it.

Among those whom she joined was Kenya Gibson. Gibson had lived in Richmond before attending graduate school in architecture at Yale; she moved back in the late 2000s for a job designing retail stores. She joined a local effort that was fighting for more school funding and became vice president of the PTA at her daughter’s school. When her local board seat came open in 2017, she ran for it, winning against an interim appointee who was backed by Mayor Levar Stoney and other “corporate Democrats,” as Gibson came to call various politicians and business leaders, some of whom had pushed in vain to switch the city to an appointed school board in the mid-2000s. “It’s about allowing the community to have a seat at the table,” she told me. “Not having a democratically elected school board is a scary notion.”

Seven of the board’s nine members were Black. One of the two white members, Jonathan Young — also the only man on the board — had long been in favor of switching to a year-round calendar. Young, a faculty administrator at Virginia State University, a historically Black institution, exuded an ornery independence, striking a critical stance against Kamras even as he often sided with his administration in disputes with other members. “To be quite blunt, we’re doing everything wrong,” Young told me. “It’s important to be able to say that the patient needs amputation, not just surgery.”

After Kamras unveiled the proposed calendar, hundreds of comments were submitted to the district’s online portal. At the March 15, 2021, board meeting, which was held online, Kamras’ chief of staff, Michelle Hudacsko, spent two hours reading the comments aloud. Many parents and some teachers expressed their support for the new calendar as a needed response to the pandemic closures. Meghann Kennedy, a parent, said, “It would be so beneficial for our kids, who have lost so much time.”

Other parents and teachers expressed opposition. Some cited practical concerns, such as the fact that they had already planned trips, camps or second jobs for the summer. But the overriding argument was that, after the pandemic’s upheaval, the district shouldn’t add disruption. “What students need most this summer is normalcy — time to reach out to family they’ve missed, time to breathe,” a teacher named Amy Brown said. “Asking more than that of teachers and kiddos is nonsense.” Shannon Dowling, a parent, said: “Our teachers have experienced trauma — they are running on fumes right now. Our families have experienced trauma. We need a break.”

After the comment session was over, Tracy Epp, the district’s chief academic officer, reminded the board just how dire the educational setback was shaping up to be. She presented the latest data on early elementary students, which showed a large increase in the number of children who were considered at high risk of struggling to read, especially among Black and economically disadvantaged students. More than half of all first graders were at risk, up 14 points from the previous year. “The science is clear about what it takes,” Epp said. “There’s a lot we can do during the school day, but, when we look at 50% not being on track, we’ve got to find more time to tackle these literacy issues.”

“If this doesn’t alarm everyone in the city of Richmond, I don’t know what will,” Young, the male board member, said. “If this data doesn’t say that a business-as-usual calendar is inadequate, then I don’t know what would.” Several of his colleagues also expressed dismay.

Others were more sanguine. Rizzi, the former schoolteacher, said that perhaps the district needed to help parents do more at home to teach reading. “There are some small things they could do to support their kids,” she said. “This doesn’t mean kids need to be in class forever.” Gibson, the former PTA leader, cited the opposition voiced by teachers and parents, and suggested that the district instead put the money toward improving summer school in 2022: “We owe the public to say, ‘We heard you.’”

The meeting had been going for almost five hours. Kamras was rubbing his eyes. Finally, he suggested that, if the board wasn’t ready to switch to a year-­round calendar for the coming school year, it could resolve to do so for the 2022-23 school year. “Let’s put a stake in the ground,” he said. “We have a reading crisis that is going to impact our students for the rest of their lives unless we deal with it.”

The board approved the idea, with Young the only holdout. “Congratulations, everyone,” the chairwoman, Cheryl Burke, said. “We’re going to have a traditional calendar for this school year, and then move into the 2022-23 year with added changes for year-round.”

Kamras had spent a summer during college working as a tutor in a housing development in Sacramento, his home town. He came away from the experience with two insights: that he really liked working with kids, and, he said, that “the third and fourth graders I was working with were every bit as capable as any other kids I’d been with, but had clearly not had the same opportunities that I’d had — and that just struck me as wrong.”

He joined Teach for America after college and started out as a middle-­school math teacher in Washington, D.C. In 2005, he was named National Teacher of the Year, and shortly afterward he joined the administration of D.C.’s schools chancellor at the time, Michelle Rhee, in a role focused on teacher recruitment and retention. In three years as chancellor, Rhee presided over rises in test scores while clashing with the teachers union over her efforts to cull underperforming educators.

Across the nation, the 2000s showed steady gains for students, as measured by such tests as the National Assessment of Educational Progress. Notably, the achievement gap between Black and white students narrowed. “It’s useful to remind people that things before the pandemic were improving,” Thomas Kane, an economist at the Harvard Graduate School of Education, told me. “We had been making progress.”

Kamras became superintendent of Richmond’s schools in early 2018. The district faced challenges. For one thing, many families did not enroll their kids in its schools. The city has roughly equal shares of Black and white residents, but its public school enrollment is 60% Black, 25% Hispanic and 10% white. Still, Kamras noticed that many people who had attended Richmond Public Schools and sent their children there felt a great sense of ownership. “I was struck by how much pride there is in RPS,” he told me. “It’s the engine of mobility for so many people here in the city.”

Before the pandemic, Kamras had been skeptical about a year-round calendar, but he was alarmed by the effects of virtual learning. “Three decades of gains were wiped out,” he said. “You’ll hear this now from elected leaders and others: ‘Stop talking about the pandemic, you can’t blame everything on the pandemic.’ I am most certainly not, but to ignore the impact of the pandemic and the fact that it’s going to have repercussions for years would be tantamount to sticking our heads in the ground.”

He began to see year-round school in a new light. For one thing, it seemed more workable than adding hours to the school day, given how drained many teachers felt at dismissal time. And it avoided the drawbacks of a long break for struggling students. Kane, at Harvard, noted that traditional summer school is often insufficient, because it’s typically voluntary and plagued by low attendance rates. Although paying teachers and staff for additional weeks of work was an added expense, extending the year was logistically easier than other supplements, such as hiring a whole new corps of outside tutors. “We already have the school buildings and the teachers,” Kane said.

“I shifted and said, ‘There may not be any better time than now to rip the Band-Aid off,’ ” Kamras told me. “No, it may not be perfect, but we’re going to be dealing with the impact of the closure for years to come.”

But, in the fall of 2021, some members of the school board started wavering about the year-round calendar. On Nov. 15, Kamras presented to the board several options — one with the same number of school days as the status quo, plus extra days for certain students, and others with 10 extra days for all students. The most expansive option would cost roughly $13 million a year in additional pay for teachers and staff, to come from the district’s federal recovery funds. The plan was to hold a public survey on the options.

Kamras was taken aback when several board members declared that the survey should have another option, too: the status quo. Gibson said that changing the calendar would spur teachers to quit, and that it was unfair to students. “We’re basically merging school into a full-time job,” she said. “It’s not right that Black and brown students in our district are chained to their desks essentially further into the school year while their counterparts in the counties get to play and have a summer.”

Kamras noted that the calendar would still have a six-week summer break, but several members were unmoved. “I wonder if there’s a way to address summer learning loss without adding days or going to year-round,” Rizzi said. “Is there some kind of way that we can take a creative approach and try something that isn’t going to feel like an extra job for our parents and our children?”

Kamras replied that he was simply following the directive of the board’s vote for a year-round calendar. He spoke with the tone of forced agreeableness that often characterized his contentious exchanges with the board. “I do believe that coming out of the pandemic we do owe our students more,” he said. “I do believe this is the right direction for this school division to go. I do believe this was what I was directed to do by the board.”

The survey went out with the status quo as an option, and it received the most votes, with higher support from white families than from Black ones. Kamras presented the results on Jan. 10, 2022, in the midst of another challenge: keeping schools open during the omicron wave. A week later, he proposed a traditional calendar for the coming year.

Young was the only board member to vote against the traditional calendar. “This board, when it punted on an alternative to the status quo, said that we would adopt it for the next school year,” he said. “That, I presume, did not mean anything when it was said.”

Recently, I asked Rizzi, who is now the chair of the board, about the change, and she said that her vote in the spring of 2021 was not to approve a year-round calendar but simply to study it further. She had doubted that it would actually happen, given resistance from teachers and their union, the Richmond Education Association. “I knew that the REA was mobilizing against it, and that there was going to be a lot of pushback, and teachers wouldn’t want it,” she said. “It wasn’t that we would definitely support it next year, it was that we would return to discuss it.”

Across the country, other school districts were also grappling with how to add more instructional time. Atlanta added 30 minutes to the school day. Los Angeles added four days to the school year, which it said would be optional for both students and teachers, with extra pay for teachers who took part; the teachers union objected, saying that it fell outside their contract agreement, and participation by students ended up being very low. Dallas had more success: It gave schools the option of adding up to 21 days for selected students, and 41 schools, roughly 1 in 8, decided to do so. Five others opted for an extended-year calendar for the whole school. Hopewell, which is half an hour south of Richmond and has a majority-­Black student population of slightly more than 4,000, became the first district in the state to institute a sweeping year-round calendar in 2021. In Dallas, the schools with the added days showed slightly larger learning gains; Hopewell has reported lower rates of teacher turnover now that there are more breaks throughout the year.

Other districts have gone in the opposite direction: cutting down on classroom time in the name of safeguarding student and staff mental health, an explicit priority of some of the federal funding. Spokane, Washington, for example, reduced students’ classroom time partly to give teachers more time for professional development. Marguerite Roza, a Georgetown University research professor of education policy, was sharply critical of this approach. “How can you believe that less school is an intervention for learning recovery?” she said. “You can’t imagine that less school is the remedy for having all that learning interruption. The kids aren’t even there.”

Dan Goldhaber, the director of the Center for Education Data & Research at the University of Washington, told me that one challenge to building support for added instructional time is that parents and other community members are not always aware of just how steep the drop-off has been, in part because many schools have been grading more leniently in recognition of the pandemic’s challenges. “There’s a real urgency gap,” he said. “It’s asymmetry between what we can see empirically about where kids are and what parents think, based on opinion surveys. There’s the belief that kids are doing OK, and the desire to snap back to normal. And that’s problematic, because normal seems to have gotten us back to the pre-pandemic pace of test-score growth, but the pre-pandemic pace does not make up for the pandemic, and we need to be on a much higher trajectory.”

An analysis of data from about 80% of public schools in the country has found that, in districts that went remote for 90% or more of 2020-21, the decline in math scores represented the loss of two-thirds of a year, nearly double the drop in districts that were remote for less than 10% of the year. And these numbers don’t take into account the millions of students who have vanished from the rolls entirely since the extended hiatus during which the norm of attending school eroded.

Roza detected a more depressing factor contributing to the urgency gap: People have simply grown inured to talk of underachieving schools. “The system has always had some kids failing, and now we have more,” she said. “There’s maybe a numbness to it.”

Recently, I spoke with a newly elected member of the executive board of the Richmond teachers union, Melvin Hostman, who said that it was hard to agree to Kamras’ push for additional instructional time when there were so many other problems that needed to be addressed: lack of toilet paper, school buses arriving late and widespread absenteeism among them. He added: “The whole thing about learning loss I found funny is that, if everyone was out of school, and everyone had learning loss, then aren’t we all equal? We all have a deficit.” When I noted data showing that the loss had had racially disproportionate impacts, he said, “Of course — because our society is inherently unequal.”

Hostman, who is in his sixth year of teaching high school history, said that what bothered him and his colleagues was that the pandemic had laid bare how much in society had been broken for a long time, making it possible to reorder things in a dramatic way: “Now people are saying, ‘We’re going back to the way things were before.’ But we didn’t like the way things were before.” He didn’t see extending the school year as a new approach: “They’re taking the weird policymaker position that what we’re doing isn’t working, so we need to do more of it.” He offered additional insight into why teachers were suffering low morale now that they were back in the building. As hard as remote learning was, he said, “there are many teachers who feel like the only time they had a work-life balance acceptable to them was during virtual school.” Teachers had been able to work from home, and many districts had cut back class hours to reduce screen time, giving teachers more flexibility to run errands, exercise and walk their dogs, just like other professionals doing remote work.

Now teachers were back in school daily, still cramming in class prep during their few empty periods, still bringing a lot of work home at night while many of their professional peers were enjoying hybrid schedules. “An industry that functions only because of additional labor that’s unpaid is trying to get people to return to that,” Hostman said. “And it’s difficult.”

A year after the defeat of the year-round calendar, Kamras decided to try again. His relations with the board had grown increasingly strained: In August 2022, after the latest state test scores showed the district doing even worse in math and science than it had the year before, there was speculation that the board might vote to fire him. Mayor Stoney, who is Black, had strongly backed year-round school, and he urged the board not to act rashly, saying that firing Kamras just before the start of the school year would be “catastrophic.” “No one should be surprised that prolonged virtual learning and the trauma of the pandemic would negatively impact academic outcomes,” he tweeted. “It’s why Superintendent @JasonKamras wisely proposed a year-round academic calendar. The School Board dismissed his proposal.”

This time, Kamras moved more incrementally. At a meeting this January, he told principals that he was launching a pilot program in which a few schools could adopt an extended calendar, adding 20 days by ending summer vacation in late July.

Under the terms of the pilot, which emerged a few weeks later, teachers at participating schools would receive a $10,000 bonus and some additional salary, plus $5,000 more if their school attained certain metrics. The total cost would be a little more than $1 million per school. A school could participate only if it had strong support from staff and parents. Kamras invited principals to apply; he would then winnow the list of candidates to a handful, after which principals would survey their school community to gauge receptiveness.

Angela Wright seized on the idea. The social dislocations from the pandemic were still pervasive, and included heightened levels of violence in and around the city’s schools, and frequent alerts from a monitoring system on students’ laptops that was used to detect threats to other students or to themselves. In mid-October, a 17-­year-old boy was found in a garbage can in the Fairfield Court housing development, fatally shot. “There maybe are some schools that don’t need those 20 days,” Wright told me. “But we know that, for some of our kids, having that whole summer out — it would have been better if they had been in a safe learning environment, so they can prosper.”

Allison El Koubi, the principal at Westover Hills Elementary, south of the James River, was also interested. Westover Hills had a lower rate of student poverty than Fairfield Court did, but it, too, had suffered steep drop-offs in achievement, in addition to a brush with violence: In October, a woman had been fatally shot during an altercation just outside the school shortly before afternoon dismissal; a teenager was later charged with the killing.

Like Wright, El Koubi saw the pilot program as an opportunity to build stability. “We had this huge disruption, we’re seeing increased levels of trauma in students and more need for social-­emotional learning, and there’s not enough time,” she told me. “Students with additional challenges can learn the same amount in a year as their higher-­income peers, but they tend to lose more in the summer, and that gap just keeps widening every year.” She also saw the pilot as a way for teachers to earn more money. “When I heard about how much the increase in salary or bonus would be, I thought, This is too big a decision to make on my own,” she said. “I want our staff to have a possibility to weigh in on it.”

Both principals applied for the pilot. Wright began gradually building support with her staff, but El Koubi, under the impression that principals weren’t supposed to publicize the proposal until Kamras settled on a list of candidates, held off.

On Jan. 31, the local CBS affiliate, WTVR, reported that Kamras had chosen four candidates for the pilot, including Fairfield Court and Westover Hills. The news caught teachers and staff at Westover Hills off guard, and many of them recoiled from the idea. In a straw poll conducted two days later, only 37% of employees said that they were interested in learning more about the pilot. “When it came out in such a jarring way, that created a lot of strong feelings about it immediately,” El Koubi said. “It felt like it was just too much.” She removed the school from the pilot. One teacher told me, “The thought is good — that we’re trying to combat whatever we lose from the students being gone so long in the summer — but the idea being brought so quickly was a tad bit too hasty.” He went on, “When you’re told that you have to work harder when you already work as hard as you possibly can, day to day, it’s not necessarily what you want to hear.”

At Fairfield Court, Wright charged ahead. She held a string of sessions with small groups of teachers and staff to explain the program. Together, the educators looked at the data showing the drop-off that kids had suffered during the summer of 2022, losing much of what they had gained the prior year, and started imagining better outcomes. It was “everybody believing in the same dream that we needed to move kids to the next level,” Wright said. “We all have to believe in our kids — that we can be successful in doing this.” All but two staff members voted for the pilot, so she was able to start surveying parents.

Wright also needed support from the school board, which would get a final say on the pilot. On Feb. 6, Giordana Buffo, a teacher at Fairfield Court, came to a board meeting to testify on behalf of the proposal. “Yes, this extended school year will come with some challenges for me personally, as well as many other teachers,” she said. “But, in the end, I feel like it would be beneficial to the academic success of our students and help mitigate some of the learning loss that many of our students face when they’re not in school for an extended period of time.”

Wright spoke a few minutes later, praising Fairfield Court as the “hidden gem in the East End.” She told the board about the data showing that the gains her students make during the year are often lost over the summer. “When we create the opportunity for underprivileged scholars to overcome disadvantages and find success, it levels the playing field,” she said.

The next speaker was Anne Forrester, a middle school teacher on the union’s collective-bargaining team, who, a couple of months later, was elected chapter vice president. She warned the board that the pilot might be “wasted money.” “This proposal for a 200-day calendar, it might work, sure,” she said. “But, to me, it doesn’t make sense to do that until we’ve gotten our schools up to where they need to be. You’re putting an addition on a house that has a leaky roof.”

One Tuesday in late February, I visited the Fairfield Court housing development. A few days earlier, the district had announced that schools would be closed that day, to align with surrounding suburban counties that were closing for a special congressional election. The day before had been Presidents Day, making for an unexpected four-day weekend. It was warm, and kids were milling around on the stoops and in the courtyards of the development, a collection of well-worn two-story brick buildings.

The mothers and grandmothers whom I spoke with were in favor of a year-round calendar and the 200-day pilot, casting it in terms of common sense: Kids had lost a lot during the pandemic, their summer break was longer than in much of the rest of the world and they didn’t have enough to do during it. “Other countries don’t do it the way we do it, and we’re consistently falling back on our education,” Octavia Bell, whose three daughters were in middle and high school, said. “You don’t have to reinvent the wheel if you see something working somewhere else.”

I spoke with several women on the next block who among them had about a dozen grandchildren in city schools. When I asked about the argument, made by some parents, that the shorter summer break would interfere with family trips, they scoffed, saying that few people in Fairfield Court could afford to go anywhere. Other parents “are too busy worrying about what they’re going to do when the kids are in school,” Diane Hicks-Taylor said. “‘Well, I had plans, I wanted to do this and do that.’ No, let the kids go to school!”

When it came time for Wright to survey Fairfield Court parents, she approached the task like an election campaign, reaching out to parents anywhere she could: at a coffee hour outside school, at an awards ceremony, at a soul-food lunch. She had staff call the parents who still hadn’t voted. In the end, 90% of families voted in favor of the 200-day pilot. The 21 remaining families were told that they would be able to transfer to another school if they wanted.

On March 6, Wright came back before the board to tell its members about the survey results and watch them vote on the pilot. Kenya Gibson, the former PTA leader, said that she opposed it because she wasn’t sure how it would be funded after the federal money ran out. Kamras replied that, if the pilot showed success, the city could seek funding from the state or other sources to expand it.

Only two members voted no: Gibson and a woman named Mariah White. After two years of efforts to expand instructional time, the board had finally approved such a move for one of its 54 schools. Two weeks later, the board approved the pilot for Cardinal Elementary, which has a heavily Spanish-­speaking population. This time, Rizzi voted against it, saying that she shared Gibson’s concerns about whether the bonuses for teachers at the pilot schools violated their collective-bargaining agreement. The fourth of Kamras’ original candidate schools, Overby-Sheppard Elementary, was deemed to have insufficient family support.

All told, only about 1,000 of the district’s 22,000 students will return to school in late July.

After the votes, Rizzi elaborated on her resistance. “‘Learning loss’ is largely a subjective term,” she told me. “Working to standardize our kids at any point in their learning process is an artificial exercise. So we experienced this pandemic, and some of our students aren’t performing as well from a standardized perspective. Characterizing it as learning loss looks at it from a deficit perspective. We should be looking at it as where we are now, and go from there.”

The day after the vote on the Fairfield Court pilot, I got a tour from Wright. The school was a hive of activity and a reminder of how much beyond academic instruction is provided by many schools: In one room, children were getting free eyeglasses; another group was off at a pool having free swim lessons. In a kindergarten classroom, a teacher was helping her students to count to 100, while, in the hallway outside, a reading coach was huddled with some second graders who had been pulled out for extra help.

Beginning next month, Fairfield Court Elementary School will implement a pilot program to extend the school year by 20 days. (Brian Palmer for ProPublica)

In her office, Wright talked excitedly about the school’s detailed plans for the extra 20 days, which will begin on July 24. “This is not just about growth, it’s about accelerating to the next level,” she said. “We want students to be 100% proficient. We want kids to continue pushing through the ceiling.”

Later, I visited Westover Hills, where Allison El Koubi told me about the things that she had hoped to accomplish during the pilot. The next day, she informed her staff that she was leaving her job as principal at the end of the year. Her departure would prove unexpectedly abrupt: On June 6, a shooting outside the graduation ceremony for one of the city’s high schools killed a graduate and his stepfather, and wounded five other people; police arrested a 19-year-old man. The district closed schools for the remainder of the week, ending the year several days early.

After speaking with El Koubi, I asked parents picking up their kids if they had been disappointed that the pilot hadn’t proceeded. One mother, Alanna Scott, said she hadn’t really seen the point of extending the year to make up for what children lost in the pandemic. “It’s past now,” she said. “Whatever they know, they should keep rolling with it. The kids don’t know what they missed.”

by Anjeanette Damon, Mollie Simon and Byard Duncan

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.

Want to learn more? Join the reporters June 22.

The nation’s top consumer finance watchdog told a U.S. Senate committee this week that practices uncovered by ProPublica’s investigation into HomeVestors of America are “very troubling” and said the Department of Justice and state attorneys general should be made aware of such actions.

Rohit Chopra, the director of the Consumer Financial Protection Bureau, also highlighted work his office is doing in the wake of reporting by ProPublica and Sahan Journal on predatory contract for deed practices targeting Minnesota’s Somali immigrant community.

At the CFPB’s semiannual report to Congress, U.S. Sen. Tina Smith, D-Minn., asked Chopra what his agency can do to better protect consumers from house-flipping franchises that can deploy deception and coercion while trying to buy homes from people in vulnerable situations at rock-bottom prices.

“Even where we might not have jurisdiction to go after a scam, we want to tell the Justice Department and tell the state AGs,” Chopra said. “A lot of people are looking at older homeowners who are sitting on a lot of equity.”

The day after the Senate hearing, U.S. Sen. Cynthia Lummis, R-Wyo., co-signed a letter with Smith to the National Association of Attorneys General asking for a more coordinated approach to preventing cash homebuyers from trapping sellers in unfair sales contracts. Smith and Lummis are the chairperson and ranking member of a Senate subcommittee on housing.

“I believe that homeowners should be protected from exploitation and I was deeply concerned by the practices uncovered by ProPublica’s investigation,” Smith said in a written statement. “The predatory tactics reportedly employed by HomeVestors to rip off vulnerable homeowners and communities must be stopped.”

In response to the letter, a HomeVestors corporate spokesperson said the company supports efforts to shield homeowners.

“As an organization committed to ensuring a fair and equitable homeowner customer experience, evidenced by our 96% customer satisfaction rating and strict code of conduct for our franchisees, we welcome initiatives to protect homeowners from unscrupulous actors,” she said.

ProPublica’s investigation into the “We Buy Ugly Houses” company found some HomeVestors franchisees used deception and targeted the elderly, infirm and people close to poverty. While the company said it doesn’t target any homeowner based on age or other demographics, ProPublica found HomeVestors aims its massive advertising apparatus at the types of houses often owned by people in desperate situations or who don’t fully understand the value of their home. The company also teaches its franchises to build relationships with nursing home administrators and probate lawyers and to scan neighborhoods for signs of desperation such as water shut-off notices, police tape and burn scars.

In response, HomeVestors’ spokesperson said ProPublica’s examples represented a fraction of the company’s transactions. She also said that such predatory behavior isn’t taught or tolerated and that “lying is against our code of ethics and our culture.”

In their letter, Smith and Lummis asked the nation’s attorneys general to consider alerting the public to these practices, work together to monitor trends and look for patterns at the local level. They recommended states create “cooling-off” requirements to give homeowners time to back out of contracts they regret. They also asked AGs to work with local officials to make it easier for homeowners to view real estate records online and be notified when documents are recorded that affect their properties.

ProPublica’s investigation found HomeVestors franchisees have often recorded notices on properties that make it nearly impossible to back out of a sales contract once signed — a practice the corporate office prohibited in reaction to ProPublica’s reporting.

During the Senate hearing, Chopra emphasized the importance of monitoring ground-level real estate activity and complaints for early warning signs of broader predatory practices.

In the run-up to the 2007 financial crisis, mortgage lenders issued predatory loans to people who couldn’t afford to pay them back. The ensuing wave of individual defaults sparked an escalating domino effect that brought the world’s largest banks to the brink of collapse.

“One of the big mistakes in the lead up to the financial crisis is federal regulators ignored stories from the ground, and that proved to be a pivotal mistake,” Chopra said.

Staci Schneider, a spokesperson for the National Association of Attorneys General, said the group doesn’t take positions without the direction of its members.

“We are in receipt of the letter and have circulated it to our attorney general members for their review and consideration,” she said.

Also during the hearing, Smith expressed concern about a tactic unrelated to HomeVestors: the targeting of Somali immigrants in her state by lenders offering “contract for deed” financing that avoids interest but often makes unsuspecting homebuyers responsible for an unaffordable balloon payment at the end of the contract’s term. When they can’t make the balloon payment, they lose the house and are unable to recoup the monthly payments they had been making on the contract. A ProPublica-Sahan Journal investigation last year shed light on the practice.

Smith said the CFPB’s complaint form, which is geared toward mortgages, makes it difficult to report predatory contract for deed practices.

“So what happens is folks can’t figure out how to use it … and so some people who have been victims are just sort of dissuaded from participating,” she said.

Chopra said his agency is working to improve the form by testing how it is used by people from various backgrounds.

Help ProPublica Investigate “We Buy Houses” Practices

by Jennifer Berry Hawes, photography by Gavin McIntyre for ProPublica

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.

Sitting at her bedroom desk, nursing a cup of coffee on a quiet Tuesday morning, Lauren Davila scoured digitized old newspapers for slave auction ads. A graduate history student at the College of Charleston, she logged them on a spreadsheet for an internship assignment. It was often tedious work.

She clicked on Feb. 24, 1835, another in a litany of days on which slave trading fueled her home city of Charleston, South Carolina. But on this day, buried in a sea of classified ads for sales of everything from fruit knives and candlesticks to enslaved human beings, Davila made a shocking discovery.

On page 3, fifth column over, 10th advertisement down, she read:

“This day, the 24th instant, and the day following, at the North Side of the Custom-House, at 11 o’clock, will be sold, a very valuable GANG OF NEGROES, accustomed to the culture of rice; consisting of SIX HUNDRED.”

She stared at the number: 600.

A sale of 600 people would mark a grim new record — by far.

Until Davila’s discovery, the largest known slave auction in the U.S. was one that was held over two days in 1859 just outside Savannah, Georgia, roughly 100 miles down the Atlantic coast from Davila’s home. At a racetrack just outside the city, an indebted plantation heir sold hundreds of enslaved people. The horrors of that auction have been chronicled in books and articles, including The New York Times’ 1619 Project and “The Weeping Time: Memory and the Largest Slave Auction in American History.” Davila grabbed her copy of the latter to double-check the number of people auctioned then.

It was 436, far fewer than the 600 in the ad glowing on her computer screen.

She fired off an email to a mentor, Bernard Powers, the city’s premier Black history expert. Now professor emeritus of history at the College of Charleston, he is founding director of its Center for the Study of Slavery in Charleston and board member of the International African American Museum, which will open in Charleston on June 27.

If anyone would know about this sale, she figured, it was Powers.

Yet he too was shocked. He had never heard of it. He knew of no newspaper accounts, no letters written about it between the city’s white denizens.

“The silence of the archives is deafening on this,” he said. “What does that silence tell you? It reinforces how routine this was.”

The auction site rests between a busy intersection in downtown Charleston and the harbor that ushered in about 40% of enslaved Africans hauled into the U.S. In that constrained space, Powers imagined the wails of families ripped apart, the smells, the bellow of an auctioneer.

Traffic drives along Broad Street toward the Old Exchange and Provost Dungeon in Charleston, the site of slave auctions Davila researched. Public auctions were held outside on the building's north side.

When Davila emailed him, she also copied Margaret Seidler, a white woman whose discovery of slave traders among her own ancestors led her to work with the college’s Center for the Study of Slavery to financially and otherwise support Davila’s research.

The next day, the three met on Zoom, stunned by her discovery.

“There were a lot of long pauses,” Davila recalled.

It was March 2022. She decided to announce the discovery in her upcoming master’s thesis.

A year later, in April, Davila defended that thesis. She got an A.

She had discovered what appears to be the largest known slave auction in the United States and, with it, a new story in the nation’s history of mass enslavement — about who benefited and who was harmed by such an enormous transaction.

But that story initially presented itself mostly as a great mystery.

The ad Davila found was brief. It yielded almost no details beyond the size of the sale and where it was being held — nothing about who sent the 600 people to auction, where they came from or whose lives were about to be uprooted.

But details survived, it turned out, tucked deep within Southern archives.

In May, Davila shared the ad with ProPublica, the first news outlet to reveal her discovery. A reporter then canvassed the Charleston newspapers leading up to the auction — and unearthed the identity of the rice dynasty responsible for the sale.

The Ball Dynasty

The ad Davila discovered ran in the Charleston Courier on the sale’s opening day. But ads for large auctions were often published for several days, even weeks, ahead of time to drum up interest.

The ad (see bottom left of screenshot) that Davila found was buried in the middle of a sea of classifieds in the Charleston Courier on Feb. 24, 1835. The handwritten marks on preserved copies of old newspapers were made by typesetters or printers at the time for their records. (NewsBank/Readex)

A ProPublica reporter found the original ad for the sale, which ran more than two weeks before the one Davila spotted. Published on Feb. 6, 1835, it revealed that the sale of 600 people was part of the estate auction for John Ball Jr., scion of a slave-owning planter regime. Ball had died the previous year, and now five of his plantations were listed for sale — along with the people enslaved on them.

The Ball family might not be a household name outside of South Carolina, but it is widely known within the state thanks to a descendant named Edward Ball who wrote a bestselling book in 1998 that bared the family’s skeletons — and, with them, those of other Southern slave owners.

“Slaves in the Family” drew considerable acclaim outside of Charleston, including a National Book Award. Black readers, North and South, praised it. But as Ball explained, “It was in white society that the book was controversial.” Among some white Southerners, the horrors of slavery had long gone minimized by a Lost Cause narrative of northern aggression and benevolent slave owners.

Based on his family’s records, Edward Ball described his ancestors as wealthy “rice landlords” who operated a “slave dynasty.” He estimated they enslaved about 4,000 people on their properties over 167 years, placing them among the “oldest and longest” plantation operators in the American South.

John Ball Jr. was a Harvard-educated planter who lived in a three-story brick house in downtown Charleston while operating at least five plantations he owned in the vicinity. By the time malaria killed him at age 51, he enslaved nearly 600 people including valuable drivers, carpenters, coopers and boatmen. His plantations spanned nearly 7,000 acres near the Cooper River, which led to Charleston’s bustling wharves and the Atlantic Ocean beyond.

ProPublica reached out to Edward Ball, who lives in Connecticut, to see if he had come across details about the sale during his research.

He said that 25 years ago when he wrote “Slaves in the Family,” he knew an enormous auction followed Ball Jr.’s death, “and yet I don’t think I contemplated it enough in its specific horror.” He saw the sale in the context of many large slave auctions the Balls orchestrated. Only a generation earlier, the estate of Ball Jr.’s father had sold 367 people.

“It is a kind of summit in its cruelty,” Ball said of the auction of 600 humans. “Families were broken apart, and children were sold from their parents, wives sold from their husbands. It breaks my heart to envision it.”

And it gets worse.

After ProPublica discovered the original ad for the 600-person sale, Seidler, the woman who supported Davila’s research, unearthed another puzzle piece. She found an ad to auction a large group of people enslaved by Keating Simons, the late father of Ball Jr.’s wife, Ann. Simons had died three months after Ball Jr., and the ad announced the sale of 170 people from his estate. They would be auctioned the same week, in the same place, as the 600.

That means over the course of four days — a Tuesday through Friday — Ann Ball’s family put up for sale 770 human beings.

In his book, Edward Ball described how Ann Ball “approached plantation management like a soldier, giving lie to the view that only men had the stomach for the violence of the business.” She once whipped an enslaved woman, whose name was given only as Betty, for not laundering towels to her liking, then sent the woman to the Work House, a city-owned jail where Black people were imprisoned and tortured.

A week before the first auction ad appeared for Ball Jr.’s estate, a friend and business adviser dashed off a letter urging Ann Ball to sell all of her late husband’s properties and be freed of the burden. “It is impossible that you could undertake the management of the whole Estate for another year without great anxiety of mind,” the man wrote in a letter preserved at the South Carolina Historical Society.

Ball did what she wanted.

On Feb. 17, the day her husband’s land properties went to auction, she bought back two plantations, Comingtee and Midway — 3,517 acres in all — to run herself.

A week later, on the opening day of the sale of 600 people, she purchased 191 of them.

More Than Names

In mid-March 1835, the auction house ran a final ad regarding John Ball Jr.’s “gang of negroes.” It advertised “residue” from the sale of 600, a group of about 30 people as yet unsold.

Ann Ball bought them as well.

Given she bought most in family groups, her purchase of 215 people in total spared many traumatic separations, at least for the moment.

As she picked who to purchase, she appears to have prioritized long-standing ties. Several were elderly, based on the low purchase price and their listed names — Old Rachel, Old Lucy, Old Charles.

Many names included on her bills of sale also mirror those recorded on an inventory of John Ball Jr.’s plantations, including Comingtee, where he and Ann had sometimes lived. Among them: Humphrey, Hannah, Celia, Charles, Esther, Daniel, Dorcas, Dye, London, Friday, Jewel, Jacob, Daphne, Cuffee, Carolina, Peggy, Violet and many more.

Most of their names are today just that, names.

But Edward Ball was able to find details about at least one family Ann Ball purchased. A woman named Tenah and her older brother Plenty lived on a plantation a few miles downriver from Comingtee that Ball Jr.’s uncle owned.

Edward Ball figured they came from a family of “blacksmiths, carpenters, seamstresses and other trained workers” who lived apart from the field hands who toiled in stifling, muddy rice plots. Tenah lived with her husband, Adonis, and their two children, Scipio and August. Plenty, who was a carpenter, lived next door with his wife and their three children: Nancy, Cato and Little Plenty.

When the uncle died, he left Tenah, Plenty and their children to John Ball Jr. The two families packed up and moved to Comingtee, then home to more than 100 enslaved people.

Life went on. Tenah gave birth to another child, Binah. Adonis tended animals in the plantation’s barnyard.

Although the families were able to stay together, they nonetheless suffered under enslavement. At one point, an overseer wrote in his weekly report to Ball Jr. that he had Adonis and Tenah whipped because he suspected they had butchered a sheep to add to people’s rations, Edward Ball wrote in his book.

After her husband’s death, Ann Ball’s purchase appears to have kept the two families together, at least many of them. The names Tenah, Adonis, Nancy, Binah, Scipio and Plenty are listed on her receipt from the auction’s opening day.

Yet, hundreds more people who remained for sale from the Ball auction likely “ended up in the transnational traffic to Mississippi and Louisiana,” said Edward Ball, now at work on a book about the domestic slave trade.

He noted that buyers attending East Coast auctions were mostly interstate slave traders who transported Black people to New Orleans and the Gulf Coast, then resold them to owners of cotton plantations. In the early 1800s, cotton had taken over from rice and tobacco as the South’s king crop, fueling demand at plantations across the lower South and creating a mass migration of enslaved people.

Birth of Generational Wealth

Although the sale of 600 people as part of one estate auction appears to be the largest in American history, the volume itself is hardly out of place on the vast scale of the nation’s chattel slavery system

Ethan Kytle, a history professor at California State University, Fresno, noted that the firm auctioning much of Ball’s estate — Jervey, Waring & White — alone advertised sales of 30, 50 or 70 people virtually every day.

“That adds up to 600 pretty quickly,” Kytle said. He and his wife, the historian Blain Roberts, co-wrote “Denmark Vesey’s Garden,” a book that examines what he called the former Confederacy’s “willful amnesia” about slavery, particularly in Charleston, and urges a more honest accounting of it.

Slavery was a form of mass commerce, he said. It made select white families so wealthy and powerful that their surnames still form a sort of social aristocracy in places like Charleston.

Although no evidence has surfaced yet about how much the auction of 600 people enriched the Ball family, the amount Ann Ball paid for about one-third of them is recorded in her bills of sale buried within the boxes and folders of family papers at the South Carolina Historical Society. They show that she doled out $79,855 to purchase 215 people — a sum worth almost $2.8 million today.

The top dollar she paid for a single human was $505. The lowest purchase price was $20, for a person known as Old Peg.

Enslaved people drew widely varied prices depending on age, gender and skills. But assuming other buyers paid something comparable to Ann Ball’s purchase price, an average of $371 per person, the entire auction could have netted in the range of $222,800 — or about $7.7 million today — money then distributed among Ball Jr.’s heirs, including Ann.

They weren’t alone in profiting from this sale. Enslaved people could be bought on credit, so banks that mortgaged the sales made money, too. Firms also insured slaves, for a fee. Newspapers sold slave auction ads. The city of Charleston made money, too, by taxing public auctions. These kinds of profits helped build the foundation of the generational wealth gap that persists even today between Black and white Americans.

Jervey, Waring & White took a cut of the sale as well, enriching the partners’ bank accounts and their social standing.

Although the men orchestrated auctions to sell thousands of enslaved people, James Jervey is remembered as a prominent attorney and bank president who served on his church vestry, a “generous lover of virtue,” as the South Carolina Society described him in an 1845 resolution. A brick mansion in downtown Charleston bears his name.

Morton Waring married the daughter of a former governor. Waring’s family used enslaved laborers to build a three-and-a-half story house that still stands in the middle of downtown. In 2018, country music star Darius Rucker and entrepreneur John McGrath bought it from the local Catholic diocese for $6.25 million.

Alonzo J. White was among the most notorious slave traders in Charleston history. He also served as chairman of the Work House commissioners, a role that required him to report to the city fees garnered from housing and “correction” of enslaved people tortured in the jail.

“Yet, these men were upheld by high society,” Davila said. “They are remembered as these great Christian men of high value.” After John Ball Jr. died, the City Council passed a resolution to express “a high testimonial of respect and esteem for his private worth and public services.”

But for the 600 people sold and their descendants? Only a stark reminder of how America’s entrenched racial wealth gap was born, Davila said, with repercussions still felt today.

by Megan O’Matz

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

Update, June 27, 2023: Meagan Wolfe will remain in her administrative post past the end of her term, July 1. Most members of the bipartisan Wisconsin Elections Commission made it clear in an open meeting on Tuesday that they have no interest in removing her, praising her expertise and defending her against criticism from conspiracy theorists and what one GOP commissioner called “grifters.” A motion to reappoint her, however, failed to muster a majority of votes after all three Democrats on the commission abstained in a strategic bid to avoid sending her nomination to the GOP-controlled Senate for confirmation and possible defeat. (The three Republican members voted to approve another term for her.) The Democrats were relying on a 2022 Wisconsin Supreme Court decision that held that the simple expiration of a term does not create a vacancy that must be filled. The result of Tuesday’s vote is likely future litigation against the commission. “I will take my shots with the court rather than at the Senate,” Democratic Commissioner Mark Thomsen said.

Meagan Wolfe’s tenure as Wisconsin’s election administrator began without controversy.

Members of the bipartisan Wisconsin Elections Commission chose her in 2018, and the state Senate unanimously confirmed her appointment. That was before Wisconsin became a hotbed of conspiracy theories that the 2020 election had been stolen from Donald Trump, before election officials across the country saw their lives upended by threats and half-truths.

Now Wolfe is eligible for a second term, but her reappointment is far from assured. Republican politicians who helped sow the seeds of doubt about Wisconsin election results could determine her fate and reset election dynamics in a state pivotal to the 2024 presidential race. Her travails show that although election denialism has been rejected in the courts and at the polls across the country, it has not completely faded away.

One of the six members of the election commission has already signaled he won’t back Wolfe. That member is Bob Spindell, one of 10 Republicans who in December 2020 met secretly in the Wisconsin Capitol to sign electoral count paperwork purporting to show Trump won the state, when that was not the case.

If retained by a majority of the commissioners, Wolfe would have to be confirmed by the state Senate. But the Wisconsin Legislature is dominated by Republicans who buttressed Trump’s false claims about fraud in the 2020 election. The Senate president has in the past called for Wolfe’s resignation after a dispute over how voting was carried out in nursing homes. Some other senators have registered their opposition to reappointing Wolfe, as well.

Republicans and Democrats have fought to a power stalemate in Wisconsin in recent months. Voters reelected a Democratic governor in November of last year and this year elected a new Supreme Court justice who tilts the court away from Republican control.

A December 2022 report by three election integrity groups looking at voter suppression efforts nationwide concluded that in Wisconsin the threat of election subversion had eased. “The governor, attorney general, and secretary of state, all of whom reject election denialism, were re-elected in the 2022 midterm election,” they wrote.

Still, the groups warned, Wisconsin continues to be a state to watch, noting “the legislature now has an election subversion-friendly Republican supermajority in the senate and a majority in the assembly.”

“We are in a better place,” attorney Rachel Homer of Protect Democracy said of the national landscape in a recent press conference following an update to that study. “That said, the threat hasn’t passed. It’s just evolved.”

There are fears that the state Senate could refuse to reappoint Wolfe and instead engineer the appointment of a staunch partisan or an election denier, tilting oversight of the state’s voting operations.

“It could be a huge disruption in our elections in Wisconsin,” said Senate Democratic leader Melissa Agard. “If you have someone who has this pulpit using it to spew disinformation and harmful rhetoric, that is terrible.”

As for Wolfe, she mostly only speaks out about election processes and stays out of the political fray.

Through a spokesperson, Wolfe declined to comment in response to ProPublica’s questions. In a public statement issued last week, she said she found it “deeply disappointing that a small minority of lawmakers continue to misrepresent my work, the work of the agency, and that of our local election officials, especially since we have spent the last few years thoughtfully providing facts to debunk inaccurate rumors.

“Lawmakers,” she continued, “should assess my performance on the facts, not on tired, false claims.” The commission created a page on its web site to address rampant misinformation.

Wolfe has maintained the support of many election officials throughout the state.

She has been “a great patriot” for not quitting despite the attacks and for being willing to be reappointed, said the executive director of the Milwaukee Election Commission, Claire Woodall-Vogg. “I think she understands the pressure and understands the peril that the state could face if she’s not in that position.”

A Honeymoon, Then Trouble

The state commission was created in 2016 by Republican state officials unhappy with the independent board of retired judges that then oversaw elections. They created a panel of three Democrats and three Republicans, advised by an administrator with no political ties.

The commission provides education, training and support for the state’s roughly 1,900 municipal and county clerks, who in recent years have faced cybersecurity threats, budget woes, shortages of poll workers and other challenges. The commission also handles complaints, ensures the integrity of statewide election results and maintains Wisconsin’s statewide voter registration database. The administrator manages the staff, advises commissioners and carries out their directives.

At first the newly established commission had someone else at the helm: Michael Haas, who had served the prior agency, the Government Accountability Board, which had investigated GOP Gov. Scott Walker for campaign finance violations. (The state Supreme Court halted the probe in 2015, finding no laws had been broken.) As a result, Haas did not win state Senate confirmation and stepped down.

The six commissioners then unanimously promoted Wolfe, the deputy administrator, to the top post in March 2018. She won unanimous confirmation in May 2019 in the Senate, which then-state Senate majority leader Scott Fitzgerald said looked to her to “restore stability.”

“I met with Ms. Wolfe last week and was impressed with her wide breadth of knowledge regarding elections issues,” Fitzgerald, now a U.S. representative, said at the time. “Her experience with security and technology issues, as well as her relationships with municipal clerks all over the state, will serve the commission well.”

The bliss did not last.

Wisconsin was one of the first states to put on an election following the start of the pandemic in 2020, amid lockdowns, fear and uncertainty. The primary that April was chaotic, with legal fights over whether to even hold the contest. Local officials closed some polling places. There were long lines in Milwaukee, Green Bay and elsewhere. The governor deployed the state National Guard to assist, and mail-in voting soared.

Voters masked against COVID-19 line up during Wisconsin’s primary election in Milwaukee on April 7, 2020. (AP Photo/Morry Gash)

Later in the year, after it became clear that Trump had lost Wisconsin to Joe Biden in the election the previous November, state Republicans blasted the elections commission for accommodations made during the pandemic, such as the wider use of ballot drop boxes and unmonitored voting in nursing homes. Critics claimed the moves increased the likelihood of fraud and tainted the election.

U.S. Sen. Ron Johnson, R-Wisconsin, proposed dissolving the commission and transferring its duties to the GOP-controlled Legislature. Talk of that ended with the reelection last year of Democratic Gov. Tony Evers. The Legislature would need his approval to disband the commission.

“What’s happened over the last six years, in particular since the Trump years, is there’s been a systematic attempt to undermine the work of the Wisconsin Elections Commission,” said Jay Heck, executive director of Common Cause in Wisconsin. “Because it’s apparently not as responsive in a partisan way to the Republicans as they would like.”

Wolfe became a target. Many Republicans accused her of facilitating the awarding of private pandemic-related grants to election clerks that those critics claimed fostered turnout in Democratic areas, though the money was widely distributed.

They also criticized Wolfe for allowing the commission to vote in June 2020 to send absentee ballots to nursing homes during the health emergency rather than have special poll workers visit to assist residents and guard against fraud. Republicans discovered that some mentally impaired people in the facilities who were ineligible to vote cast ballots in Nov. 2020, though the numbers were small and not enough to change the election results. Municipal clerks had received only 23 written complaints of alleged voter fraud of any type in the presidential election, the state’s nonpartisan Legislative Audit Bureau found.

Wolfe was the target of lawsuits and insults. Michael Gableman, a former state Supreme Court justice and Trump supporter tapped by the Assembly Speaker to lead a 2020 election investigation, mocked her attire: “Black dress, white pearls — I’ve seen the act, I’ve seen the show.”

One conservative grassroots group, H.O.T. Government, has been sending out email blasts urging Wolfe’s ouster, referring to her as the “Wolfe of State Street.”

Wolfe does have champions, but they are not as vocal as her critics. “I think she’s done an outstanding job with running the Wisconsin Elections Commission here,” said Cindi Gamb, deputy clerk-treasurer of the Village of Kohler. “She’s been very communicative with us clerks.”

Gamb is the first vice president of the Wisconsin Municipal Clerks Association, but she said the group’s rules bar it from making endorsements.

Dane County Clerk Scott McDonell finds the assaults on the once-obscure bureaucrat troubling. “What has Meagan done to deserve the abuse she's gotten?” he said. “Nothing.”

Wolfe did receive the support of 50 election officials nationwide who called her “one of the most highly-skilled election administrators in the country” in a 2021 letter to the Wisconsin Assembly speaker. Wolfe is a past president of the National Association of State Election Directors.

And she has had the backing of a bipartisan business group that in February of last year sent a letter of appreciation to her and the commission. “Although the 2020 elections were among the most successful in American history thanks to your efforts, we recognize election administrators nationwide are facing increasing unwarranted threats and harassment. We hereby offer our sincere gratitude and full support,” said the letter from Wisconsin Business Leaders for Democracy.

The 22 signers included the president of the Milwaukee Bucks, the former CEO of Harley-Davidson and two top members of the Florsheim shoemaker family.

An Undecided Fate

Wolfe’s term expires July 1.

To avoid a showdown, some legal experts are exploring whether the commission could take no action and just allow Wolfe to continue past June 30, according to the Milwaukee Journal Sentinel. They’ve pointed to the example of Fred Prehn, a dentist appointed to the state Natural Resources Board who refused to leave after his term expired in May 2021, preserving GOP control over the board.

The state Supreme Court ruled last year that Prehn had lawfully retained his position, finding that the expiration of a term does not create a vacancy. And because there was no vacancy, the governor could not make a new appointment unless he removed Prehn “for cause.” Prehn ultimately resigned last Dec. 30.

That scenario now is unlikely. Commission chair Don Millis, a Republican attorney, told ProPublica Wednesday that “there will be a vote” in the near future to consider the appointment of an administrator.

“If someone didn’t think we should have a vote, and we should rely on the Supreme Court decision in the Prehn case, they could move to adjourn,” he said, but added: “I’m not excited about that. To me it would be avoiding our responsibility if we didn’t act.”

Millis declined to say if he would back Wolfe but said he feared that if the commission did not take a vote “that would only add fuel to the fire of the conspiracy theories that we get hit with.”

He warned, “If we decide no vote is required and Meagan Wolfe keeps her position after July 1, I can guarantee you we’ll be sued and the courts will decide.”

Arguing that Wolfe does not have the confidence of Republicans, Spindell said, “I did tell her that I’m not going to vote for her.” He stressed, however, that he thought she was unfairly blamed for long-standing policies set by the commission.

In a letter Wednesday to clerks statewide, Wolfe acknowledged that “my role here is at risk” but said she preferred that the Legislature act quickly to confirm someone, even if it isn’t her. Still, she made it clear she considers herself the best choice to serve the commission. “It is a fact that if I am not selected for this role, Wisconsin would have a less experienced administrator at the helm,” she wrote.

And she also made clear what she thinks is driving the questions about her future, writing that “enough legislators have fallen prey to false information about my work and the work of this agency that my role here is at risk.”

If the commission does vote on Wolfe, Agard said, she expects Wolfe will secure at least one Republican vote, moving her nomination on to the Senate — and what could be a hostile environment.

Senate President Chris Kapenga, a Trump loyalist, told the Associated Press this week that “there’s no way” Wolfe will be re-confirmed by the Senate. “I will do everything I can to keep her from being reappointed,” he said. “I would be extremely surprised if she had any votes in the caucus.”

In the Senate, the matter could first be considered by the Committee on Shared Revenue, Elections and Consumer Protection — chaired by GOP Sen. Dan Knodl. In the weeks after the 2020 election, Knodl signed on to a letter calling on Vice President Mike Pence to delay certifying the results on Jan. 6.

Spindell already is envisioning a future without Wolfe. He said there is talk of conducting a national search for a new administrator, but Millis said there doesn’t appear to be an appetite among the commissioners for this approach. He noted the commission is pressed for time: Come July 1, the state will be only about 16 months away from a presidential election.

State law restricts who can be appointed as election administrator. Appointees cannot have been a lobbyist or have served in a partisan state or local office. Nor can they have made a contribution to a candidate for partisan state or local office in the 12 months prior to their employment.

If the position is vacant for 45 days, the Joint Committee on Legislative Organization, chaired by Kapenga and GOP Assembly Speaker Robin Vos, can appoint an interim commissioner.

As for Wolfe, Spindell said: “She’s experienced. She’s been on all the various boards. I’m sure she would have no problem getting a job anywhere else.”

by Jessica Lussenhop and Agnel Philip, photography by Jaida Grey Eagle for ProPublica

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

Update, June 15, 2023: On Thursday morning, the U.S. Supreme Court ruled 7-2 in favor of upholding the Indian Child Welfare Act. Justice Amy Coney Barrett wrote for the majority that the case was about “children who are among the most vulnerable” and that “we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.”

When Cheyenne Hinojosa saw her husband, Jose, and her mother charging through the doors at the gas station where she worked, she assumed something terrible had happened. In Jose’s hands was a stack of papers — the latest legal filing in Hinojosa’s long-running child protective services case regarding her then-3-year-old daughter.

In 2018, not long after Hinojosa’s daughter turned one year old, a South Dakota Department of Social Services caseworker had come to Hinojosa’s home in Huron and taken her away. Two years later, a county judge terminated Hinojosa’s parental rights, an act so permanent that in the legal world it’s considered the death penalty of child welfare cases.

The decision meant that Hinojosa was no longer legally her daughter’s mother.

“I felt my heart just stop,” Hinojosa said of the moment she heard the judge’s ruling.

She asked her attorney to appeal, though he warned Hinojosa not to get her hopes up. In his four-decade career, he’d never had a parental rights termination ruling reversed. For almost a year, Hinojosa barely had contact with her daughter.

All that changed in July of 2021, when her husband reached across the gas station counter and handed her documents with the words “Supreme Court of the State of South Dakota” near the top. Toward the end was the court’s unanimous decision restoring Hinojosa’s parental rights. She started to cry.

“I'm back in the game,” Hinojosa remembers thinking.

In their ruling, the justices seemed particularly disturbed by one important aspect of the case: As an enrolled member of the Lower Brule Sioux Tribe, Hinojosa and her family should have had powerful federal protections under the 1978 Indian Child Welfare Act.

Under ICWA, the state Department of Social Services and the local court had a much higher legal bar to meet than in most child welfare cases before they could terminate Hinojosa’s parental rights. And according to the state Supreme Court, the case against her had failed to meet that higher standard, which it noted was created by the law’s authors “to prevent the breakup of the Indian family.”

Against the odds, Hinojosa became one of a small number of parents to have their rights restored by South Dakota’s highest court. It was a moment of validation for a young Native American mother who’d been told throughout the process that she wasn’t fit to be a parent.

Hinojosa’s triumph was short-lived. She had assumed that, with her rights restored, her daughter would be swiftly returned to her custody. She was wrong. And there was yet another fight on the horizon. A month later, Hinojosa learned she was pregnant. Before her second daughter was even a day old, the state was moving to take custody of her as well.

When ICWA became law 45 years ago, the goal was to counteract a century of federal policies that had broken up tribal families. Congress meant to make it harder to terminate the rights of Native American parents, particularly over subjective beliefs about parenting, like that wealthier couples who are not Indigenous would provide a better life for children.

Since its passage, ICWA has played a key role in keeping many Native American families intact, according to tribal leaders, attorneys and child welfare experts. And while federal foster care data — the only national dataset that describes outcomes of the child welfare system —doesn’t track whether a child is covered by the law, a ProPublica analysis found that, in recent years, children identified as Native American were less likely to be taken permanently from their parents than white children once they have entered the system.

Unlike in the U.S. overall, in South Dakota Native American children entering foster care are more likely to face termination of parental rights than white children. Note: Data represents children who were placed in foster care from 2015 through 2019. (Source: ProPublica analysis of National Child Abuse and Neglect Data System removal records.)

The reverse is true in a handful of states, including South Dakota. There, more than 700 Native American children — or about one of every 40 living in the state — experienced the termination of their parents’ rights from 2017 to 2021, the ProPublica analysis found. That was one of the highest rates in the country and nearly 13 times the rate for white children in the state.

“ICWA only works if you follow it,” said Marcia Zug, a professor of family law at the University of South Carolina School of Law.

One issue, child welfare experts said, is that ICWA collides with another federal law. The Adoption and Safe Families Act, passed in 1997, created strict timelines to reduce the amount of time children spend in foster care and free them up for adoption. Once 15 months have passed since a child has been removed from their parent, in most cases child welfare agencies must file for termination of the birth parents’ rights. If they don’t, states can lose federal funding.

In South Dakota, Native American children experience termination of parental rights at 13 times the rate of white children. Note: Terminations occurred between 2017 and 2021. Race and ethnicity categories are not all mutually exclusive. Black and Native American and Alaska Native children may be of Hispanic ethnicity. Hispanic children may be of any race. Non-Hispanic, multiracial children are not included in the data presented. (Source: ProPublica analysis of National Child Abuse and Neglect Data System records and American Community Survey data.)

These two pieces of legislation are sometimes at odds in state courts. While ASFA incentivizes speedy decision-making, ICWA mandates efforts that can be more comprehensive and expensive for state and local child welfare offices. In 2005, South Dakota’s Supreme Court became the first in the country to rule that ASFA does not take precedence over ICWA. A patchwork of legal determinations across the country has bred confusion, however.

“I wish the feds would clear it up and just come out and say, ‘With regard to Native children, either in tribal court or in state court, under ICWA these timelines don’t apply,’” said B.J. Jones, the director of the Tribal Judicial Institute at University of North Dakota School of Law.

Looming over all of this is an existential threat to ICWA. The U.S. Supreme Court heard oral arguments in November in a challenge to ICWA brought by three couples who say that the law’s preference for placing adoptable Native American children in Native households is outdated and biased against white families and should be struck down. That argument is opposed by a coalition of nearly 500 tribes, as well as dozens of state attorneys general, child welfare and tribal rights organizations, which have filed briefs in support of preserving ICWA. The court’s decision is expected this month.

Though the current debate centers on adoption, Kimberly Cluff, legal director of the California Tribal Families Coalition, said the termination phase of the child welfare process is what hurts Native American families.

“Creating family for children is a wonderful thing,” she said. “It’s cutting off of other family that’s the problem.”

Though Hinojosa’s mother lived for a time on the Lower Brule Sioux Tribe reservation in central South Dakota, Hinojosa has spent most of her life in small towns around the state that are predominantly white. After her father, who was white, died when she was 18, Hinojosa developed a stronger connection to her Lower Brule heritage. She found an appreciation for the artwork and language, picking up Lakota and Dakota words from her mother and an aunt.

When she was 20, Hinojosa became pregnant. Though the pregnancy was unplanned, she had always wanted to become a mother.

“I was happy. Scared. You know, the mixed emotions of a first-time mom,” she said.

The baby girl was born healthy in the fall of 2017. (ProPublica is not naming either of Hinojosa’s children to protect their privacy.) Ten months later, Hinojosa and her daughter’s then-28-year-old father, who is from the Crow Creek Sioux Tribe, got married.

The state Department of Social Services made its first appearance in the family’s life not long after that. In June 2018, someone called the police on Hinojosa and her husband for smoking marijuana at home, and officers cited her husband for possession of drug paraphernalia. Not long after that, Hinojosa went to an anti-abortion counseling center in Huron hoping to get free diapers and formula and blurted out to a worker that she’d smoked marijuana that day. She said the worker reported it to Social Services, which led to her daughter spending a month in foster care before she was returned home.

In early October of that year, documents show, a caseworker arrived unannounced at 9 a.m. in response to another report about the couple. Hinojosa and her husband were asleep, and a roommate let the woman inside. The caseworker wrote in her report that the baby’s diaper was so soiled it was wet to the touch, that she was left alone and unsupervised — one of the more serious allegations against the couple — and that she was hungry.

The caseworker also noted “life threatening” conditions in the household: pieces of candy and wrappers on the floor, moldy baby bottles, a fan with no cover on it, cockroaches in the kitchen and prescription bottles in the bedroom. Caseworkers removed the baby, and a court later deemed her an “abused and neglected child.” She was placed in foster care with Hinojosa’s sister-in-law, who lived about 45 minutes away.

The removal, Hinojosa said, devastated her. But she said she was also immature and slow to appreciate the gravity of the situation. So while she signed up for mental health services, a chemical dependency evaluation and parenting classes, she did not complete them. In their reports, caseworkers noted that she often showed up late to weekly visitations with her daughter or canceled. Though the caseworkers wrote that Hinojosa’s daughter was “excited” to see her and was “attached” to her, they also made critical notes. “Cheyenne sat on the couch for the majority of the visit,” read one. “Cheyenne brought Burger King” for her daughter, another said, “but ate most of the food.”

Over and over, the reports mention out-of-control marijuana use: “Cheyenne’s lifestyle is characterized by using illegal drugs, which is prioritized over planning and caring for” her daughter, said one.

Hinojosa has always maintained that her marijuana use was never habitual. She was also baffled by caseworkers’ contention that “no adult in the home will perform parental duties.”

“I’m the one who's bathing her, changing her, feeding her, all that. Taking her to appointments,” she said. “But they still wanted me to say I neglected her.”

The South Dakota Department of Social Services declined interview requests and did not respond to a detailed list of ProPublica’s questions about Hinojosa’s case.

The paperwork also said little about the turmoil in Hinojosa’s life. Eight months after their daughter was taken, Hinojosa left her husband and was effectively homeless, sleeping on friends’ and relatives’ couches. She did not have a car. She struggled to hold a job.

About 13 months after the baby was removed, a caseworker emailed their latest report to the Beadle County State’s Attorney, which has jurisdiction over child welfare cases in Huron, saying: “Please note we are requesting no further efforts on both parents,” and requesting a termination of parental rights hearing within 60 days. Beadle County Circuit Court Judge Jon Erickson granted the request; in December 2019, Social Services cut off the services it had been providing to Hinojosa.

One of the most important mechanisms of ICWA is the requirement that social service caseworkers make “active efforts” to help Native American parents stay in their children’s lives and hopefully regain custody. That includes providing transportation to visits and to therapy, as well as access to culturally appropriate programs.

The standard is lower in cases of children who do not qualify for ICWA. Under the Adoption and Safe Families Act, child protective service workers only have to provide “reasonable efforts” to keep families together. After a child has been in foster care for 15 months, the state can end those efforts and file for a termination of parental rights. ASFA also says the state can stop those efforts early if it determines that abuse or neglect is chronic or severe.

ASFA’s passage resulted in a large increase in the number of terminations. According to a recent study, the chances a child in the U.S. will experience the severing of their legal relationship with their parents roughly doubled from 2000 to 2016.

In Hinojosa’s case, the active efforts made by caseworkers included not just assigning her to parenting classes and setting up visitations, but also providing transportation. Although Social Services never explicitly mentioned ASFA in its simultaneous request to stop providing Hinojosa with these services, the timing of the proposed termination — roughly 15 months after her daughter was removed — followed the law’s guideline.

Around the time that Social Services cut off services to Hinojosa, her life was finally stabilizing. She moved in with her mother. She reenrolled in parenting classes. She began meeting with a behavioral analyst named Valere Walton, who started Hinojosa on an intensive case management plan to help her develop better parenting skills.

Hinojosa and her court-appointed lawyer were preparing to present all this at a termination hearing scheduled for March 2020. Then COVID hit. Seven months passed before the hearing could be rescheduled. Not realizing that Social Services had cut off active efforts, Hinojosa continued calling and asking for visits with her daughter.

Walton said she saw firsthand that Hinojosa was asking for home inspections and drug tests.

“This young lady was asking social services, ‘Please come into my home, see the changes I’m making,’” said Walton. “They wouldn’t even try.”

In September 2020, the hearing to terminate Hinojosa’s parental rights was convened in the limestone Beadle County Courthouse in the center of Huron. Her then-husband attended, but the couple was headed for a divorce and he was already in the process of voluntarily terminating his parental rights. (He did not respond to requests for comment.)

Downtown Huron, South Dakota

Under ICWA, the judge had to determine that the evidence proved “beyond a reasonable doubt” that returning custody to Hinojosa was “likely to result in serious emotional or physical damage to the child.” When Congress wrote the law, lawmakers chose this standard of proof because they believed that separating parents and children “is a penalty as great, if not greater, than a criminal penalty.”

Hinojosa’s attorney, Doug Kludt, was optimistic that she had made enough progress to provide a compelling argument for retaining her parental rights. She had completed an eight-week substance abuse program the day before the hearing.

“I thought it was real possible,” he said.

ICWA also mandated that Hinojosa’s tribe receive notification from Social Services about the termination and be allowed to intervene. But no one from Hinojosa’s tribe was in court, even though Social Services had contacted the ICWA offices of the Lower Brule Sioux Tribe many times.

Under ICWA, the court also had to hear testimony from a “qualified expert witness” to provide an assessment of the case from the perspective of someone familiar with the cultural and social norms of the tribe. Raymond Cournoyer testified that, based on his experience as a member of the Yankton Sioux Tribe, the termination of Hinojosa’s rights was best because “drugs and alcohol use is not the Native American way to live your life.” He acknowledged that his opinion was based entirely on Hinojosa’s Social Services casefile, which did not contain any information about the last nine months of her life, including Hinojosa’s claim — supported by her substance abuse counselor — that she had been sober.

Cournoyer, who is now retired, said in an interview that he does not remember Hinojosa’s case, but if he had known the file was nine months out of date it would have been a “red flag” to him.

Hinojosa’s most recent caseworker took the witness stand to reiterate the conditions of the apartment in 2018 and Hinojosa’s marijuana use at the time. While she acknowledged that Social Services had ended its efforts to help Hinojosa nine months before the hearing and that she’d never seen Hinojosa’s current apartment, she testified that Hinojosa had failed to show progress. She said Hinojosa had no bond with her daughter.

Walton, the behavioral analyst, testified there was marked improvement in Hinojosa’s life over the previous year. She added that, in her opinion, Social Services hadn’t just been absent in Hinojosa’s case, it had actively undermined Hinojosa.

“There was a lot of resistance and a lot of desire to continue to terminate Cheyenne’s parental rights,” she told the court. “That is a very loving little girl. And she loves her mom. So to say that there is no bond is a very, very terrible falsehood.”

Hinojosa testified last. She admitted that she should have complied with Social Services requirements sooner, but said that issues with her husband, with money and with transportation impeded her progress. She said she felt confident she could be a better caregiver using the parenting and life skills she’d acquired.

“I love her with all my heart. She is my life,” Hinojosa said of her daughter. “I think of her when I wake up and when I go to bed.”

On cross-examination, Beadle County State’s Attorney Michael Moore pressed her about why she was unemployed, how she expected to afford food and diapers and why she fell short on some of her goals with Walton. His closing argument was mostly about how Hinojosa had run out of time.

“How long are we supposed to wait then?” Moore said. And how long, he asked, was Hinojosa’s daughter supposed to wait? “They had done stuff — what they could do for 15 months. And they couldn’t get her to do anything.”

“I don’t think we should terminate rights just because somebody is poor and can’t maintain a job,” Kludt argued in response. “A young child deserves to be with her mother.” As to how long Hinojosa’s daughter could wait, he said, “If it’s her natural mother, she can wait a little while. I don’t think we should be on some sort of rigid timetable here.”

Minutes later, Judge Erickson terminated Hinojosa’s rights.

Cheyenne met her second husband, Jose Hinojosa, on a smoke break at the sprawling turkey processing plant where they both worked at the time. She was candid with him about the complications in her life; one of their first conversations, they both said, was about her child welfare case.

“When I’m nervous, I babble. And everything just comes out,” she said.

Cheyenne and her second husband, Jose Hinojosa, on their wedding day (courtesy of Cheyenne Hinojosa)

The day before the couple’s wedding, the state Supreme Court reversed the outcome of the termination hearing. In their decision, the justices called out the “glaring defects involving ICWA,” principally the failure to continue efforts to reunify Hinojosa and her daughter. They questioned how Erickson could rule beyond a reasonable doubt that Hinojosa’s daughter was in imminent physical or emotional danger when no evidence had been introduced into the record for the previous nine months. They gave Hinojosa credit for her “ongoing work with counselors on her own accord.”

However, the supreme court’s order did not simply restore custody to Cheyenne. Instead, it ordered that the state “reassess” her, this time following the mandates of ICWA. Social Services essentially started the process all over again, allowing the Hinojosas short, supervised visits with Cheyenne’s daughter. Although the newlyweds were eager to start their own family, her lawyer advised her to wait until the case was closed before having another child.

But it was too late. A month after her wedding, Hinojosa discovered she was pregnant.

“What if they come for this one?” she worried.

On supervised visits with Cheyenne’s daughter, she and Jose told the caseworker they were expecting another little girl and asked if there was any cause for concern.

“Every time we could ask, we asked them, ‘Is she gonna be taken?’” said Jose. “The response was the same: ‘There’s no reason for us to take her.’”

The baby was born in April 2022. Hinojosa and her husband posted photos of the dark-haired newborn on Facebook and sent Snaps and texts to family and friends. The next morning, as Cheyenne was having breakfast with Jose in her hospital room, she looked down at her phone and saw a missed call from her caseworker. When they connected for a brief phone call, her worst fears were realized: Social Services was going to take her younger daughter as well.

“I literally felt the soul leave my body,” she said.

For the next two days before her discharge, Cheyenne and Jose slept as little as possible, passing the baby back and forth, trying to savor their dwindling moments together. When Cheyenne set her down in her bassinet for the last time and turned to leave, the baby let out a little cry. Her parents fell apart.

They left the hospital empty-handed and tearful. For the next several days, they stayed with Cheyenne’s mother; the empty crib in their own house was too much to bear.

In one of the earliest court filings in this new case, a Social Services caseworker alleged that the Hinojosas were neglectful. A sworn affidavit from Social Services said “Cheyenne has made little progress” in her older daughter’s case. The court filing made no mention of the fact that Hinojosa’s rights had been restored or the mistakes that the lower court and Social Services had made. It criticized the Hinojosas’ behavior at visitations with Cheyenne’s older daughter, saying they complained too much that she was “exhausting.”

“Jose and Cheyenne do not have the resources to meet” their daughters’ needs, the affidavit read. “Jose and Cheyenne are routinely using their resources for other things such as eating fast food and shopping.”

About a week after the newborn was taken, Cheyenne and her mother huddled around a phone at Kludt’s office. Across the street in a storefront legal office, Jose sat with his lawyer. The prosecutor, the caseworker and a new judge all dialed in.

After the caseworker explained their reasoning for taking custody, the judge ticked off the facts of the case. It appeared the younger daughter’s removal was based entirely on her older sister’s case. The mother had been divorced and remarried. Jose had never had a Social Services case.

After a brief recess, the judge returned custody to Cheyenne and Jose. Hours later, they met their younger daughter’s temporary foster mother at the Social Services office.

“I grabbed that car seat, and I left that office,” said Jose. “I didn't look back.”

Jose Hinojosa with his daughter at their home in Huron

The Department of Social Services did not answer ProPublica’s questions about the legal justification it had for removing the younger child at the hospital. Moore, the prosecutor, said he told Social Services that he thought Cheyenne Hinojosa had shown enough progress to delay termination regarding her older daughter back in 2020.

“Next time, I think that they will listen to me, because of the Supreme Court case,” he said. “It's one of those cases of ‘I told you so.’”

First image: Jose Hinojosa and Joan Malikowski, his mother-in-law, share a laugh after cleaning Jose and Cheyenne’s daughter following cake at her first birthday party celebration in Huron. Second image: Jose and Cheyenne’s daughter’s birthday dress.

Though the prosecutor stood behind the first case he made against Hinojosa, he conceded that the outcome was the result of trying to enforce two conflicting federal laws — plus the typical human disarray that affects many child welfare cases. It was not, he insisted, an attempt to sidestep ICWA.

“To paint a picture that we’re ignoring this or not following it, I don’t think is fair,” Moore said. “I think that there’s a lot of things that could be done outside of the court system to make this process better.”

For example, he said, in his 30-year career, he has never had a tribe take jurisdiction of a child welfare case and move it to tribal court, which ICWA permits them to do.

“I don’t think it’s necessarily the tribes’ fault. I just don’t think they have the resources,” he said.

Clyde Estes, the chairman of the Lower Brule Sioux Tribe, declined to speak specifically about Hinojosa’s case. But he said his ICWA division is just one person tasked with processing child welfare case requests for the tribe’s roughly 4,500 members, the vast majority of whom live off the reservation. The tribe does not have an ICWA attorney, and as one of the smallest tribes in South Dakota, it has little money and relies mostly on financial support from the federal Bureau of Indian Affairs to fund its ICWA work.

“It really puts us in a tough bind,” he said.

Estes said that things will only get worse if the U.S. Supreme Court strikes ICWA down. While states like North Dakota and Colorado have recently enshrined ICWA tenets into state law, similar bills in South Dakota died during the last session. The state legislature also would not approve the creation of a task force to study the disproportionate impact of the child welfare system on Native American children, a lack of action Estes called “heartbreaking.”

In response, several of the state’s tribes announced their intention to start their own study.

“This is a very serious issue for the future of our children,” said Estes. “They should have the option to be in a Native home on their own lands. Because that’s who they are. And that’s their identity.”

Although ICWA protections ultimately preserved Hinojosa’s family, the law couldn’t put everything back together. Last Thanksgiving, Hinojosa’s family was as close to being whole as it had been in four years. The case with Social Services over her older daughter was still going on, but she and her husband were allowed unsupervised overnight visits. Cheyenne’s older daughter had joined them for the holiday. The Hinojosas’ younger daughter had been back in their care for about seven months and had grown into a chubby, sweet-tempered girl.

Hinojosa’s mother set up tables in the living room. They invited a couple of friends. The spread included ham, mashed potatoes and gravy, chicken and stuffing.

After dinner, Hinojosa realized her older daughter had stopped playing with the other kids and was alone in her room. Hinojosa found the 5-year-old in tears. She said she missed her foster mother and siblings.

“I want to go home. I want to go home,” Hinojosa remembers her saying.

After she calmed her down and put her to bed, Hinojosa went into the basement, where the sound of her own crying wouldn’t be heard. A feeling that had been building for weeks crashed to the surface. She wondered if the long, disruptive process of regaining custody had somehow harmed her daughter.

In the years since she’d been living with an aunt in another town, Hinojosa’s daughter had been diagnosed with emotional disorders and was experiencing developmental delays. Her foster mother had found a school that was helping her achieve her milestones. Many of her doctors were there, too. Social Services had made it clear in their reports that they did not believe Hinojosa understood her daughter’s conditions or had the resources to take care of her. Hinojosa felt a sense of inevitability, certain they were heading towards another termination hearing.

And though their relationship had at times been strained over her efforts to regain custody, Hinojosa always thought her older daughter’s foster mother was a wonderful caregiver. The woman had long made it clear she would adopt the girl. The day after Thanksgiving, Hinojosa said she called the foster mother to tell her, “You’ve done an amazing job with her.” (Hinojosa’s older daughter’s foster mother did not respond to several requests for comment.)

In early December, Hinojosa went back in front of Judge Erickson and voluntarily terminated her parental rights for her older daughter. She knew some people would say that she’d just given up.

“I have to do what’s best” for her, she told herself, “even if it’s not with me.”

Because of her relationship with the foster mother, Hinojosa gets to see her oldest daughter regularly, though she has no legal right or guarantee that those visits will continue. She is relieved the case is over, but also haunted by her final decision. She replays the events of the last four years in her mind, she said, hoping that someday she can explain all of it to her daughter.

How We Measured Terminations of Parental Rights Using Foster Care Data

We analyzed data from the Adoption and Foster Care Analysis and Reporting System to compare termination of parental rights rates across states by race.

The AFCARS data, obtained from the Department of Health and Human Services’ National Data Archive on Child Abuse and Neglect, required steps to clean and deduplicate before we could make comparisons across counties and states. This database had unique identifiers for children called AFCARS IDs, which we used to remove duplicates. For cases in which the most recent report had multiple entries for the same unique identifier, we kept the latest termination of parental rights date. We then filtered the dataset to the entries in which rights for both parents were severed between 2017 and 2021, the last full year covered in the data. Then we grouped this dataset by state and counted the number of terminations by race. To find the rate of terminations per child in each state, we divided our count by the under-18 population from the Census Bureau’s 2017-2021 American Community Survey.

To find how likely children who entered the child welfare system were to be permanently separated from their parents, we identified children placed into foster care from 2015 to 2019, based on having a removal date during that time period. We chose these earlier years to allow time for the foster care cases to resolve. We then flagged which of those children, based on their AFCARS IDs, had their parents’ rights severed between the removal and the end of September 2022, the last day covered in the data.

The data used in this story was obtained from NDACAN via Cornell University and used in accordance with a terms of use agreement license. The Administration on Children, Youth and Families, the Children’s Bureau, the original dataset collection personnel or funding source, NDACAN, Cornell University and their agents or employees bear no responsibility for the analyses or interpretations presented here.

Mariam Elba contributed research.

by Lisa Song, with additional reporting by Jaime Yaya Barry for ProPublica, photography by Kathleen Flynn, special to ProPublica

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We’re investigating the cause of viruses spilling over from animals to humans — and what can be done to stop it. Read more in the series.

Several times a day, Hassanatou Bah scans for threats along the river’s edge near her village in northwest Guinea. The once-mundane chore of fetching water has become a territorial tug of war with an increasingly frightening foe: chimpanzees. Some days, she’s seen them hurl rocks from trees. Other times, they throw clusters of leaves containing nests of biting weaver ants.

Chimps had long encroached on Kagnèka, her farming community of about 350, but there was a time when residents could beat on gongs to scare them away. That changed about six years ago when a mining expansion drained streams and razed trees, driving the displaced primates into a desperate struggle with the village over food and water. Kagnèka’s crops became an open buffet. And the chimps began guarding the river so aggressively that Bah no longer felt safe bringing her two small children, or washing her clothes on the bank, or even going alone.

One afternoon in February, an enormous nest loomed above — a mound of bent branches where a chimpanzee would have recently slept. Bah used a gourd to scoop water into a bucket to balance on her head, then rushed home with neighbors, past trees stripped bare of bananas.

What Bah and her neighbors didn’t know is that they — and the chimps who now terrorize them — are the accepted collateral damage in a deal brokered by the globally respected World Bank Group, whose priorities include reducing poverty, protecting the environment and preventing the spread of deadly diseases.

First image: Hassanatou Bah, left, and Aissatou Bah fetch water near Kagnèka, Guinea. Second image: A chimpanzee nest in the forest near Missira, Guinea.

The idea seems noble: In parts of the world rich in natural resources, but struggling economically, the bank sets up arrangements known as biodiversity offsets. Mining or gas companies, for example, can build environmentally ruinous projects in areas even if they are home to endangered species as long as the companies protect the same species elsewhere or take other steps to “compensate” for the ecological damage.

When the World Bank Group funds their operations, it allows the companies to publicly portray themselves as ecologically responsible. In some cases, the name-brand companies that eventually use their products can do so as well.

The World Bank Group has backed such projects for decades; its arm that works with private companies, the International Finance Corporation, has funded at least 19 with biodiversity offsets.

IFC standards are influential and considered the best in the world.

But in practice, ProPublica found, projects brokered by the World Bank Group can fall short of their idealistic goals. The one in Guinea has left a trail of hunger, displaced and broken families, decimated ecosystems and conditions ripe for the spread of deadly contagions.

And the deals themselves sometimes fall apart, with the land used as an offset falling prey to another company or disaster — with few consequences for the company or its lenders.

The deal in Guinea began like many others: Compagnie des Bauxites de Guinée sought funding to expand its mining operation. The company estimated its project would lead to the deaths of up to 83 critically endangered western chimpanzees; if they weren’t killed in the demolition, the displacement would decimate the population over time, as females stopped reproducing due to stress and males injured or killed one another fighting over shrinking territory.

Chimpanzees in Bossou, Guinea. (Photo courtesy of Maegan Fitzgerald)

A nearby company that also needed money predicted its mine would result in the loss of twice as many chimps. The IFC helped the companies establish Moyen-Bafing National Park some 200 miles away, where thousands of other chimps already lived. Bolstering and protecting this population, the idea went, would make up for the loss of the others.

But the companies’ consultants underestimated the chimp death toll, primatologist Genevieve Campbell and her colleagues later found in an independent review of the offset. The consultants had assumed some of the chimpanzees near the mines would survive, but the reviewers concluded the development would contribute to the eventual deaths of all the chimpanzees — about 180 to 400.

The offset also faced an existential threat: A regional development authority, not working with the IFC or the mining companies, proposed building a dam that would submerge a swath of it and kill up to 1,500 chimps, in addition to displacing 8,700 people.

Offsets are “mainly an instrument to sanction perpetual destruction,” said Jutta Kill, a researcher and environmental advocate who’s studied conservation programs in the Global South.

[Offsets are] mainly an instrument to sanction perpetual destruction.”

—Jutta Kill, researcher and advocate

While biodiversity offsets have been used by governments, banks and industries at least 13,000 times across 37 countries, these arrangements have been subjected to far less scrutiny than carbon offsets, which my investigations have found to be profoundly flawed.

I reviewed the literature on the tiny sliver of biodiversity offsets that have been studied and found that, at best, their records are spotty or unproven. At worst, they function as greenwashing for destructive industries.

Those associated with the World Bank Group are among the most controversial, because unlike most others, some enable companies to write off the lives of critically endangered species.

Such trade-offs are increasingly likely as nations race to extract metals from wildlife habitats to meet the global demand for electric cars.

To investigate what gets traded away in a World Bank Group offset, I traveled to five Guinean villages where more than a thousand people live. Mining has long been a nuisance in the Boké region, which is rich in bauxite, the mineral ore that makes aluminum. But residents said the impacts have become noticeably worse since the IFC loaned $200 million to Compagnie des Bauxites de Guinée for its expansion, exacerbating the damage from decades of mining.

Residents described increasing chimpanzee raids, dwindling resources, wells that had run dry and explosions that cracked the foundations of their homes. Their hopes for better-paying jobs were dashed when the mine provided few opportunities. One village was relocated from a shaded grove to a scorching, windswept hilltop, barren as the surface of Mars. Residents said they had little choice in the matter.

The IFC says that its primary consideration when deciding to fund a project is whether it will help alleviate poverty and bolster economies in countries with urgent financial needs, and that it takes great pains to make sure clients use offsets only after taking appropriate steps to minimize impacts on nature. By forcing companies to follow strict standards, the IFC said in a statement, it is “helping embed conservation in economic development.” A spokesperson said that the IFC’s relatively small number of offsets reflects how well it has reduced the need for them.

But some say any stamp of approval by such a revered institution is harmful.

“The World Bank’s involvement helped burnish the profile of a company whose sustainability credentials were otherwise highly suspect,” said Natalie Bugalski, legal and policy director for Inclusive Development International, which advocates for marginalized communities affected by development projects; she added that such an endorsement helps destructive projects attract further funding.

First image: Children in Hamdallaye play soccer. Second image: Mamadou Lamine Barry is the administrative chief of Fassaly Foutabhé, Guinea. The village was relocated a few hundred feet across a stream because of mining activity by Compagnie des Bauxites de Guinée.

Compagnie des Bauxites de Guinée is 49% owned by the Guinean government and 51% by a consortium of global mining companies including Rio Tinto and Alcoa, with a registration address in Delaware. A spokesperson said it has been engaged in “constructive” dialogue with the villages in collaboration with the IFC, adding that the mediation has been “an opportunity to continue to improve its practices.”

Before the mining deal, Kagnèka had never worried this much about water, said assistant village chief Ousmane Bah. As legend goes, the village’s founder once sacrificed a cow in a religious ceremony to ensure enough water for generations. Now, its children are dehydrated on sweltering, hourlong walks from school. And many of their fathers no longer live with them, forced to migrate more than 30 miles to raise crops and cattle for the families back home.

The mines have “destroyed all of the land” and left residents with little recourse, Bah said. It’s as if “we don’t own anything,” he added. “We don’t even own ourselves.”

Khadijatou Bah cooks a meal in M’Bouroré, Guinea.

A world away from rural Guinea, delegates gathered in Montreal last December for a United Nations conference on biodiversity, where nearly 200 countries hoped to sign an agreement about measures they would take to protect nature. Participants ate salad using biodegradable cutlery and drank seltzer from cans that could have been smelted from Guinean bauxite.

I’d arrived hoping for a crash course on biodiversity offsets, which seemed even more complicated than carbon offsets. Our most basic needs depend on healthy ecosystems: bees to pollinate crops, forests to filter drinking water. It took thousands, if not millions, of years for these complex systems to evolve. And how would you even begin to make up for dead elephants?

I heard no mention of anything dead in Montreal. Instead, conference sessions referencing the concept didn’t even use the word “offset” — a term that has become controversial in recent years — and instead glossed over the fine points with the kind of vague enviro-jargon that permeates high-level gatherings: talk of “raising the bar” via “guidelines” and “building a risk management and disclosure framework.”

It took some interviewing in the months that followed to piece together the rest.

The idea of compensating for ecosystem harm has existed since at least the 1960s, but biodiversity offsets became mainstream in the 1980s when the United States began regulating wetland destruction via the Clean Water Act. If you wanted to rip up 20 acres of wetlands for a shopping mall, the rules said, you now had to preserve or restore at least 20 acres of wetlands elsewhere. Other nations created similar programs, and the concept took off.

The vast majority of offsets used today are created to comply with regulations set by governments; others are voluntarily adopted by corporations or brokered through banks as a condition of funding. The World Bank Group has worked with companies ranging from Chevron and ExxonMobil to wind and solar farms to set up offsets. Many projects often have funding from other banks at the same time, including the two in Guinea.

Trucks pass through a village near bauxite mines in the Boké region of Guinea.

The best biodiversity offsets follow these requirements, experts say: They must be used as a last resort after considering alternatives to ecosystem destruction. They must protect the same type of species or habitat that is being harmed. They should sustain the promised biodiversity for a long time (forever, or at least decades). They should claim credit only for the benefit they create, not what would have happened anyway, such as gains from preexisting conservation efforts. Finally, they should create “no net loss” in biodiversity. In other words, if a natural gas power plant destroys 30 acres of swamp forest where endangered frogs live, the offset could make up for it by restoring at least 30 acres of the same kind of habitat. (Separate rules exist to protect humans affected by these projects, though they’re not consistently enforced.)

The limited number of studies show decidedly mixed outcomes. In 2019, a survey of 32 papers on whether the offset sites recreated the biodiversity that was lost found that one-third of them, all involving wetlands, had some level of success, while none of the forest-based offsets met that goal. Even one of the most notable successes — a high-profile project in Madagascar on track to offset tree loss — has not proven it will make up for other biodiversity harms, scientists concluded last year. “We know embarrassingly little about the effectiveness of offsets,” even though they’ve become an important policy tool, said Julia Jones, a professor of conservation science at Bangor University in Wales who co-authored the Madagascar study.

“The World Bank’s involvement helped burnish the profile of a company whose sustainability credentials were otherwise highly suspect.”

—Natalie Bugalski, legal and policy director for Inclusive Development International

The IFC said that it requires offsets to achieve no net loss and that many of the papers showing mixed results focus on projects “designed under older policy systems that pre-date current IFC and industry good practice.” For offsets that affect the habitats of endangered species or great apes like chimpanzees, the IFC said it almost always requires a “net gain” in biodiversity and the participation of a special team of experts when great apes are involved. It tightened its rules in 2019 to limit projects that affect great apes’ habitats; it has, however, since funded a hydroelectric dam in Gabon that threatens gorillas and endangered central chimpanzees. The project developer said the impact on those animals would be “negligible,” but the outside experts who reviewed the project (including Campbell) concluded there’s not enough data to tell how many great apes will be affected.

Many critics say offsets remain a “get out of jail free card” for ecosystem damage. Developers can break ground long before anyone can tell whether the corresponding offset will succeed. Companies don’t often invest enough to secure long-term results; the mining companies in Guinea, for example, will fund the national park for 20 years, but chimps can live twice as long. And there are few resources to follow up and ensure the offset project actually works.

One recent failure is all too familiar: An IFC-funded dam in Uganda struggled for years to support its offset, which included protecting a large stretch of forest and several islands along the Victoria Nile River. It deteriorated further in 2019 when a second dam flooded part of the offset, requiring a new offset to offset the offset.

A World Bank panel later concluded that “mitigating the partial loss of one offset by creating another erodes the underlying principles of offsetting.” Yet this is the same remedy the World Bank suggested for the developer that plans to inundate part of the park that was supposed to offset the mines’ destruction of the chimp habitat. A spokesperson for the IFC said the institution has no power to overrule what the Guinean government decides to support and approve.

A sign for the Guinea Alumina Corporation in the Boké region.

The companies that funded the park insist their offset would still count if the dam floods part of it. Compagnie des Bauxites de Guinée said there would be enough chimpanzees left there to “largely cover” the loss of chimps near the mines. Guinea Alumina Corporation, the second company that worked with the IFC to establish the park, said the dam could be “an opportunity” for biodiversity, as it “would increase the availability of water in and around the park” and bring in additional conservation funding from the dam operator.

The company said it has taken steps to help chimps near its mine, planting trees and maintaining the aquifers near the forests where the animals prefer to live. As to the finding that the offset undercounted the mines’ toll on those chimps, the company said that the estimate came from a yearslong survey, that all such efforts contain “a degree of uncertainty” and that “the goal is to reduce this uncertainty over time through repetition and peer review.”

But Campbell, the primatologist who took part in the estimate for the offset project, said the task involved as much art as science. “Offsets are a bit crap” when you’re dealing with chimpanzees and other great apes, she said. None of the handful of ongoing great ape offsets around the world have proven their success, she added.

And the math fails to account for the ethical questions of losing entire communities of complex and intelligent animals, said Campbell, who has consulted for both mining companies in the past. As the closest relative to humans, chimpanzees share more than 98% of our DNA. Chimpanzees take care of their young for years, and mothers have been observed carrying their infants for days after their deaths. Each community has its own culture. Some groups fish for algae; others crack nuts using self-made tools. Once the chimps in a community die off, those traits are lost forever.

First image: Local resident Youssouf Mané, left, speaks with the executive director of Guinée Ecologie, Mamadou Diawara, and primatologist Genevieve Campbell in the forest near Missira. Diawara and Campbell were in the region studying mining’s impacts on chimpanzees. Second image: Diawara looks through a textbook on primates of West Africa during a trek through the forest near Missira.

Offsets “should never be an excuse to legitimize” harm to critically endangered species, which are “about as vulnerable as you can get,” said Sophus zu Ermgassen, a University of Oxford researcher who advises the British government on biodiversity offsetting. Doing so clearly violates best practices, but such offsets may still make sense if you can make a really good case that the development alleviates extreme poverty, he said.

“It is better to have something than to have nothing” was a sentiment I heard again and again. Several experts — including scientists who’d criticized offsets — said they are a pragmatic tool given that it’s impossible to avoid all impact on nature from development projects, many of which would happen anyway. They said the rules for best practices are constantly improving and written by people with good intentions.

Manga Kounsa, a lawyer and activist, stands next to the house that had been his home before Fassaly Foutabhé was displaced by a mining company.

For the villages near areas mined by Compagnie des Bauxites de Guinée, biodiversity has always meant much more than something to be balanced on spreadsheets. Generations of farmers relied on the land and surrounding forest, hunting, fishing and collecting water from the streams. Families planted cassava and rice and raised cattle. Halimatou Barry recalled how it didn’t take much to keep her children fed during mango season, when they stuffed themselves with fruit. Bah Mamadou Lamarana said residents tracked the appearance of one type of bird that signaled the start of planting season and another whose song indicated it was time to harvest.

When people got sick, they turned to the forest as their main pharmacy, collecting bantora for scabies; garba for pain relief after childbirth; and kinkeliba for an herbal tea that treats insomnia. The farmers in his village cleared trees to plant crops, but they took care not to overexploit the land, said Manga Kounsa. When one of his neighbors began selling charcoal to survive, he said, the community gave him farmland so he could stop logging. Once you remove the forests and animals, the communities become villages in name only, Kounsa said. “It doesn’t have the characteristics of a village anymore.”

All of the villages I visited were within a few miles of one another, accessible via dirt roads and occasionally only on foot.

Three of them — Kagnèka, Bandoji and M’Bouroré — are being plundered by displaced chimpanzees.

(Lucas Waldron/ProPublica)

Biodiversity surveys confirmed the presence of chimps near these villages before the mining expansion. They’d always lived close to humans, foraging for fruit and insects among a mosaic of woodlands, savannas, farms and the riverine forests where they tend to nest. Crops can act as a backup food option when there’s little wild fruit available, experts said. But as their habitat is chopped up by the mines, or noisy machinery drives them away, farms and orchards become increasingly attractive and essential to their survival. The fear and stress of being kicked out of their own territory can make chimpanzees more aggressive.

The chimps that visit Bandoji are smart, residents said. They might show up in the morning at one end of the village to raid their crops, and if they see people there, the chimps will go to the other end in the evening. Farmers said they’ve had to cut down trees to make more space for crops, in part because they now have to share their harvest with the chimpanzees.

Mamadou Hocha Diallo, a hunter in M’Bouroré, wishes everything would go back to the way it was when the chimps had a large enough forest that they mostly stayed there. Now, they show up in the village every two or three days, just long enough for the next batch of cashews to ripen. “We all have to fight for the available food,” he said.

First image: Mamadou Hocha Diallo during a workday in a cashew orchard. Second image: Diallo walks through cashew trees near his village with his daughter, Mariama. Third image: Cashews are harvested in Kagnèka

This new collision between people and chimps can spark outbreaks of deadly viruses as they jump from wildlife to humans in an event known as spillover. It happened in 2013 in the Guinean village of Meliandou, where scientists believe the world’s worst outbreak of Ebola began after a toddler played near a tree full of bats.

The majority of emerging infectious diseases start with these fateful moments.

“Anytime you’re creating unnatural interactions between species and resources are becoming limited, you’re potentially concentrating viral load in the environment,” said Sarah Olson, an epidemiologist at the Wildlife Conservation Society.

Chimpanzees can be infected with coronaviruses and filoviruses including Ebola. The same diseases circulate in other local wildlife, including bats and smaller monkeys. If chimpanzees are wandering more frequently into villages, then other animals may be doing that too, even if it’s less noticeable, said Laura Bloomfield, a postdoctoral fellow at the University of Vermont who studies infectious diseases and environmental change.

The biggest spillover risk comes from direct contact, of humans touching the blood, saliva or feces of an infected animal. Because many of the residents consider it taboo to hunt or kill chimpanzees, they are somewhat protected. The spokesperson for Compagnie des Bauxites de Guinée said the company monitors chimpanzees with a network of cameras and drones and officials haven’t seen or heard “any case of direct conflict” between chimpanzees and humans.

But they’re still vulnerable to risks from indirect contact, Olson said. If someone eats fruit that was recently contaminated by the saliva of a sick chimpanzee, for instance, that disease could jump into the human population. On a recent morning, in a ransacked orchard, Diallo’s young daughter Mariama played on the ground among dropped cashew fruits.

First image: Fatoumata Bah processes oil from the kernels of oil palms in M’Bouroré. Bah sells the oil to supplement her income and says the dust from mining has affected crop yields in her village. Second image: Cashews dry on the ground in M’Bouroré.

Spillover risk is a numbers game, Bloomfield said. The more interactions there are, the greater the chance that an animal will transmit a particular disease to a human, and the greater the risk that person will get sick and pass it on to their neighbors. The best way to reduce risk “is not having overlapping habitats,” she said.

The World Bank Group recently warned of this very problem, yet the IFC’s standards were last updated in 2012 and don’t account for the wealth of virus research conducted in the wake of the West African Ebola epidemic.

The IFC spokesperson said both mining companies that created the offset have policies that prevent staff from hunting chimpanzees and that the institution “is increasingly encouraging our clients to include pathogen transfer risks in protocols for encounters with great apes on project sites.”

But the IFC standards include no protections against spillover risk.

Ousmane Bah, assistant village chief of Kagnèka.

In every village I visited, residents gathered in a circle, next to houses with slanted thatched roofs, and talked of promises broken.

The World Bank Group was familiar with an important context when it decided to back the mine expansion in Guinea, which has one of the highest poverty rates in the world: Though mines had long powered the economy, local residents — those impacted the most by the industry — stood to benefit the least. The IFC was supposed to guard against any further harm or exploitation. In 2016, an IFC executive announced the expansion would create jobs. And IFC standards required communities to be compensated for lost agricultural land with property “of equal or greater value” or cash payments “at full replacement cost.”

Instead, out of five villages, I heard of only one person who’d gotten a job in the mines. And each community spoke of lands seized or crops lost with zero or inadequate payment, forcing residents to find other ways to support themselves, some selling their livestock to survive.

I spent an afternoon in Fassaly Foutabhé, a village of 75 that was relocated a few hundred feet across a stream to make way for future mining activity. Kounsa, a young, soft-spoken attorney who grew up there, said he returned after graduating from law school to advocate for his community amid the expansion. He said his neighbors were not reimbursed for the medicinal plants they lost or for the reduced yields of their crops.

In the small portion of farmland that remains in the village’s control, the cashews are stunted by endless dust that blows in from the nearby mine. The red powder coats the trees, making it look like the leaves have rusted; it was so thick that Kounsa wore a mask.

Unlike the villages frequented by chimps, there is nothing left to scavenge here. Leaders told me the community will be forced to disperse unless they can obtain funds to move to a place with ample farmland and clean water. “Our village is very dear to us,” they wrote last year in a letter to Compagnie des Bauxites de Guinée and the government. “But our lives are worth even more.”

First image: Residents in Fassaly Foutabhé reinforce the walls of a home prior to the community being relocated. Photo courtesy of Manga Kounsa. Second image: Fassaly Foutabhé is one of several villages displaced by Compagnie des Bauxites de Guinée.

The stream began to run dry in 2017, Kounsa said. The fish have disappeared. The mines use water to control dust on roads, and the influx of people moving to the nearby city of Sangarédi in search of mining-related jobs places additional strain on water sources. Bob Adam, an Australian mining consultant who’s worked in Guinea, said bauxite deposits act as a kind of sponge that stores water underground, and their removal can drain local streams. Before they broke ground, the environmental disclosures for both mines acknowledged that there would be potential harm to local streams, as well as air pollution and noise.

Vibrations from dynamite used to extract bauxite have cracked the walls of people’s homes. The explosions keep them up at night; I heard one of these blasts during a tour of Kagnèka, a loud, echoing boom like a cannon.

It’s as if we’ve been “colonized,” Diallo said.

Many of these grievances are documented in a letter that 13 villages filed with the IFC in 2019. Similar details emerged from a 2018 report from Human Rights Watch.

Several organizations helped residents write the letter, including Centre du Commerce International pour le Développement, a Guinean group that advocates for community and women’s rights. Bamba Ibrahima Kalil, the group’s director of programs, said the effort has led to limited gains. The company has agreed to stop blasting within 1 kilometer of villages and installed dozens of water taps in communities. “It’s not enough,” Kalil said, adding that his organization is fighting for the restoration of clean water in local rivers and streams.

The spokesperson for the mining company said it has “always ensured that all environmental and social impacts” from its projects “are fully compensated in accordance with applicable standards including those of IFC.”

“Our village is very dear to us. But our lives are worth even more.”

—Letter from Fassaly Foutabhé residents to Compagnie des Bauxites de Guinée and the government

Adam, the mining consultant, said the industry is improving. Compagnie des Bauxites de Guinée is transitioning to surface miners, machines that produce less dust and noise than the traditional drill-and-blast method, he said; the company said it runs a program to repair and build water wells in 50 villages throughout its mining area.

Kalil said the IFC needs to take responsibility for the company’s overall track record, not just the post-2016 expansion. When the IFC agreed to fund the mine, he said, it essentially endorsed the company’s legacy. That includes a long-running dispute with the village of Hamdallaye, whose 600 residents were relocated in 2020.

IFC standards require companies to offer residents different options for resettlement.

Hamdallaye residents told me that didn’t happen. Their complaint letter describes how they’ve been fighting the company’s intentions to relocate them since 2007, and that even though some residents signed agreements in 2018, they didn’t understand what the documents meant.

The company disputed the accusation that they forced the move. “The resettlement of Hamdallaye village was done following a participatory and inclusive process” that meets IFC standards, a spokesperson said, adding that decisions were made by a committee that included men, women and young residents from the village and that families were compensated for crops and agricultural land.

The company moved the community to a barren hilltop. I visited to find pink brick houses with metal roofs baking in temperatures that hover over 100 degrees. “They brought us here and left us under the sun to dry like clothes,” Halimatou Barry said.

Mamadou Oury Bah takes down laundry. A field scorched by wildfire surrounds the village where the people of Hamdallaye have been relocated by Compagnie des Bauxites de Guinée.

Their former homes had thatched roofs that dispersed the heat and were sheltered by fruit trees, residents said. Bah Mamadou Lamarana, an activist and community leader, reminisced about a time when families could step outside to hunt and fish. The only wildlife in the new village, he said, are mosquitoes.

The only vegetation here is brittle tufts of grass and a few trees that offer about as much shade as a potted plant. Mamadou Maoudoh Bah said the company had promised to plant thousands of trees, but it did little to cool the air. He pointed to one of the saplings — a spindly thing about 5 feet tall, small enough to count every leaf.

Even Adam, the mining consultant, was shocked by where Hamdallaye’s residents ended up. “I don’t think it’s a suitable site for a relocation,” he said.

As I talked to Bah in the shade of a house, flames erupted a block away. The fire tore through a field, black smoke rising several stories high. I later heard it had been started by a dropped cigarette. Residents said these wildfires occur nearly twice a month during the dry season.

First image: A tree in Hamdallaye. Second image: A fire breaks out near houses in Hamdallaye.

The company has rehabilitated more than 1,000 hectares, or roughly 2,500 acres, of mining land since 2017, its spokesperson said, establishing a tree nursery with 500,000 seedlings and hiring more than 100 residents each year to plant and monitor the trees.

“We acknowledge that communities care about land use and feel that their new land should have been fully rehabilitated before their move,” the spokesperson said. “Hamdallaye still has access to certain historical prime agricultural land, where their usual crops and fruit trees are.”

Just 2 miles away, the old village sat empty, a few crumbling walls poking through the ground like ancient ruins. The air felt 20 degrees cooler. Bah stood before the remains of his mother’s house, next to the tree he’d planted as a teenager, its branches dripping with green mangoes. When the fruit ripened each spring, he said, his family would boil the pulp and mix it with palm oil to make a sauce for fish stew.

Bah said he rarely returns here. The reminder is too painful.

Mamadou Maoudoh Bah stands in the abandoned village of Hamdallaye, where he had previously lived before his village was relocated.

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Special thanks to our driver, Alpha Amadou Bah.

Design and development by Anna Donlan. Photo editing by Peter DiCampo.

Correction

June 15, 2023: This story originally misstated the type of chimpanzee threatened by a hydroelectric dam in Gabon. It is the central chimpanzee, not the western chimpanzee.

by Anna Clark

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After decades of intense debate and stalled legislation, the Food and Drug Administration has taken a critical step in overseeing a vast category of lab tests that reach patients without any federal agency checking to ensure they work the way their makers claim.

Among the tests that are not reviewed by the FDA: popular prenatal genetic screenings that ProPublica recently reported on, as well as certain cancer screenings and tests for rare diseases.

On Wednesday, a notice of the proposed rule was posted. This is the first concrete evidence that the FDA is preparing to apply its regulatory powers to these lab tests.

“A modern oversight framework that is specifically tailored to assuring tests work is critical to position ourselves for the future — whether it is preparing for the next pandemic or realizing the full potential of diagnostic innovation,” an FDA press officer said in a statement to ProPublica.

Peter Lurie, president and executive director of the Center for Science in the Public Interest, applauded the move. “It’s exciting to see the agency taking concrete steps to address this long-standing hole in the public health safety net,” he said.

The agency’s hands-off approach to lab-developed tests — which are designed, manufactured and used by a single lab — traced back to a time when they were deployed at a small scale. The idea was to spare hospital labs, for example, from the time, money and hassle of getting approval in Washington whenever they needed to create a simple test for their own patients.

Nowadays, so-called LDTs are an enormous part of the health care system, including a number of high-stakes tests made by commercial companies. Because they aren’t registered with the federal government, nobody knows how many exist. A 2021 study by Pew Charitable Trusts estimates that 12,000 labs are likely to use such tests, many of which process thousands of patient samples each day. Currently, the Centers for Medicare and Medicaid Services reviews lab operations, but it doesn’t check whether the tests themselves are clinically valid.

While these tests “play an important role in our health care system,” said the FDA press officer, the agency “is very concerned about problematic LDTs currently used in the U.S. that might not provide patients with accurate and reliable results.”

ProPublica’s investigation of prenatal genetic screenings detailed how the FDA doesn’t review the tests before they reach patients, nor does it verify marketing claims made by companies that sell them. False positives, false negatives and uncertain results about genetic anomalies have sometimes led to devastating consequences for families, the investigation found. Companies aren’t required to publicly report instances of when the test gets it wrong, and no federal agency is able to recall faulty tests. (We also made a guide to prenatal screening tests for expectant parents.)

The next step for the FDA is to publish a draft of the proposed rule, which seems likely to happen in August. It will go through a public comment period, and then the agency will develop a final rule. Both the proposed and final rules need to be cleared by the Department of Health and Human Services and the Office of Management and Budget. Experts said this process could go relatively quickly, or it could take a year or more, pushing up against a 2024 election that might change priorities in Washington.

Over the years, a large coalition of labs, professional associations and academic medical centers have argued that FDA oversight over the lab tests would be overly burdensome and inflexible — so much so that it would stunt critical innovations and limit patient access to quality health care. Opponents also express concern about the FDA’s capacity to oversee the tests.

Mary Steele Williams, executive director of the Association for Molecular Pathology, said in a statement to ProPublica that AMP is updating its proposal for an alternative approach to lab testing reform, one that doesn’t rely on the FDA. Instead, it recommends modernizing existing regulations through CMS, “which we believe to be the most effective and streamlined approach.”

Williams also said that AMP intends to continue working with other institutions to “raise our shared concerns with FDA regulation” over lab-developed tests. It remains committed, she said, “to working with Congress and other stakeholders to establish a more efficient regulatory framework that ensures high-quality patient care while continuing to foster the rapid innovation and promise of new diagnostic technologies.”

An earlier effort by the FDA to rein in LDTs came in 2014, when the agency issued draft guidance. But after facing nearly two years of stiff opposition, the agency pulled it. One of the strongest critics was the American Clinical Laboratory Association, a national trade group. It challenged the FDA’s authority over the tests by filing a citizen petition and making clear its intent to sue if necessary.

In a statement on Wednesday to ProPublica, an ACLA spokesperson said the association has long taken the position that any regulation of LDTs must be done through legislation. It should be a framework “that recognizes the essential role of clinical laboratories in advancing public health, preserving and fostering innovation and maintaining access to critical testing services,” the spokesperson said, adding: “We stand ready to provide expertise and technical assistance to Congress.”

There have been several efforts to reform lab testing through Congress over the years, and the FDA has signaled that it welcomes legislative action that would create a modern framework specifically tailored to clinical testing.

In 2022, a bipartisan bill known as the VALID Act seemed to have its best shot at passing, having gathered momentum after the scandal over fraudulent Theranos blood tests and the coronavirus pandemic. But, facing pushback, it was dropped from a must-pass bill at the end of the year. While ACLA’s spokesperson said the association worked with the bill’s sponsors to help shape it, in the end, ACLA didn’t endorse it. The act was reintroduced in the House in March.

If the FDA enacts a new rule, supporters anticipate legal challenges, said Cara Tenenbaum, a former policy adviser for the agency whose consultancy signed onto a recent letter urging it to assert oversight.

But over the past decade, the FDA tried every alternative to address what it sees as a public health problem, she said.

“All they have left is their existing device authority,” Tenenbaum said. “They’ve been backed into a corner, if you ask me.”

The FDA pushing ahead with a proposed rule, even while legislation is on the table, makes sense because “the clock is ticking on the administration,” said Lurie, a former top FDA official who worked on lab testing reform.

At the same time, he said, “the problem is long-standing and, frankly, in fact, growing. More and more products come to market every day, and very few of them get regulated.”

by Max Blau, photography by Lucy Garrett for ProPublica

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This story was produced in partnership with MLK50: Justice Through Journalism and co-published with the Commercial Appeal.

On a brisk morning in the winter of 2019, at a standing-room-only reception, a procession of speakers lavished praise on the surgeon who more than tripled the size of the liver transplant program at Methodist University Hospital in Memphis. The lifesaving doctor was receiving an honor often reserved for the dead: Methodist’s leaders announced that the hospital’s new state-of-the-art transplant center would be named for Dr. James Eason.

Eason seemed to have reached the summit of what was then a 25-year career. A decade earlier, he had performed one of the highest-profile liver surgeries in recent history: the transplant that extended the life of Apple co-founder Steve Jobs by more than two years. That operation earned Eason the gratitude of Jobs’ widow, who later donated a total of $40 million to the transplant center he helmed and the medical school where he worked as a professor. At age 58, Eason had become one of the country’s highest-paid transplant surgeons, earning $1.7 million a year, more than anyone at Methodist but the head of its nearly 13,000-employee, six-hospital health system.

But for all the lives the liver transplant program saved, the hospital’s leadership had growing concerns about the number of patients dying on Eason’s watch. During the five years before the renaming ceremony, those deaths had sparked investigations from the federal contractor that oversees transplant centers. They also prompted multiple health insurers to remove the liver program from their preferred networks, according to internal documents.

In 2018, following the most recent investigation, Methodist hired a consulting firm to audit the program. The audit, conducted by peers from other transplant centers, found that numerous errors had contributed to patient deaths — and that to reduce the rate of failed liver transplants, Methodist likely would have to perform fewer transplants overall. But according to the audit, that would be difficult. Staffers felt “powerless to make change due to the resistance of leadership,” who gave the employees the impression that “volume is king,” the audit said.

The audit concluded that “disruptive, disrespectful, non-collaborative individuals” had put the liver transplant program and its patients “in a constant state of risk.”

In December 2018, Methodist University Hospital President Roland Cruickshank wrote a letter to the federal contractor acknowledging the transplant program’s worrisome number of deaths. “The decline in our outcomes is of the utmost concern,” he wrote, “and is not taken lightly.” Weeks later, Cruickshank sat in the front row of the renaming ceremony and stepped up to unfurl a banner with the words “James D. Eason Transplant Institute.”

ProPublica and MLK50: Justice Through Journalism obtained an extraordinary cache of internal records that reveal Methodist leaders failed to comprehensively fix problems with the liver program before the renaming ceremony. The records include the independent audit, detailed internal reviews of patient deaths and the hospital’s correspondence with the federal contractor, a nonprofit called the United Network for Organ Sharing, or UNOS.

One of the documents was an internal analysis drafted at Eason’s behest. In part of the analysis, one of his most senior colleagues determined that between late 2014 and mid 2018, 25 deaths — more than half of the program’s 48 total fatalities — were preventable.

The analysis found that some liver recipients had died after their transplant as a result of “process/protocol issues.” It also found that a portion of patients “should not have been listed” for transplant due to preexisting medical conditions.

Along with the documents, interviews with families of nearly two dozen liver transplant recipients who died over the past decade show that, in some cases, Methodist staffers didn’t tell them about the extent of the problems that contributed to their loved ones’ deaths.

Terry Green, a retired Army noncommissioned officer who donated a portion of his liver to his identical twin brother, did not know that Eason’s team had, according to medical records and internal documents, failed to conduct enough testing to rule out the risks of cardiac and pulmonary complications before Eason himself performed the transplant. His brother died from cardiac arrest in the operating room.

Terry Green donated a portion of his liver to his identical twin brother, Jerry Green.

Stacy Roberts was unaware that, following her father’s transplant, Eason’s team had identified major problems with the donated liver it had placed inside him, issues it may have been able to identify with further screening, internal records show. Methodist had accepted the liver from another hospital, which had failed to spot that the organ bore the early signs of cirrhosis. Days later, after her father experienced serious complications, Methodist providers conducted their own biopsy, discovering the full extent of the damage to the organ. Her father died about a month after the surgery. Hospital records show that transplant program leaders later required surgeons to more rigorously review liver donations before accepting those organs for patients.

For years, Tiffany Garrigus was haunted by the memory of watching her 59-year-old father die just several hours after his transplant. Unbeknownst to Garrigus, a nurse had reported concerns about internal bleeding to the surgical fellow on shift and noted that the doctor failed to quickly alert the attending surgeon. The miscommunication delayed potentially lifesaving care. The independent auditors later determined that Methodist’s own review of Steve Garrigus’ death was a “missed opportunity” to prevent similar issues in the future.

“They screwed up,” Garrigus said after she learned about records that outlined Methodist’s treatment of her father. “No one was held accountable and nothing changed.”

Tiffany Garrigus visits the grave of her father, Steve Garrigus, in Union City, Tennessee.

Garrigus and five other families who spoke with ProPublica and MLK50 signed documents waiving their rights to privacy so Eason and Methodist could answer questions about their loved ones’ deaths. Eason and Methodist declined to address those questions. The hospital and Eason also did not answer specific questions about the dozens of deaths detailed in the investigations, the findings in the audit of the transplant program or the correspondence between the hospital and UNOS.

Spokespeople for Eason and the hospital asserted that ProPublica and MLK50 singled out patients with negative outcomes. Methodist spokesperson Tabrina Davis also said in a statement that the news organizations had “settled on a clear narrative, one which we believe is a misleading and inaccurate portrayal of the institute.” The statement went on to say that “the transplant institute is on a continuous journey of improvement, focused on providing the highest quality care for each patient.”

Eason turned down multiple requests to be interviewed for this story but responded to questions in writing at various points. In one statement, he said that he and his team at Methodist “tried to give every patient the opportunity for transplant.” He also said in that statement that while there were “2-3 unexpected deaths per year” between 2011 and 2018, “we also saved more than 100 lives each year, all of whom would have died without liver transplantation.” Eason’s lawyer, Elizabeth Sacksteder, said in a separate letter that “performing more transplants rather than fewer” and using “the best available organs rather than waiting for the perfect organ” are pivotal parts of Eason’s approach to running a liver transplant program.

Dr. James Eason discusses Methodist’s liver transplant program with the advisory board of the University of Tennessee Health Science Center’s College of Medicine in 2015. (via University of Tennessee Health Science Center’s Facebook)

For more than a decade, Methodist liver recipients had a greater-than-expected chance that their liver would not be functioning one year after transplant, a metric used by UNOS to assess transplant centers’ performance. Eason said in his statement that UNOS had overrelied on that metric without taking into account that programs like Methodist have accepted more high-risk patients who would otherwise die imminently. He added that Methodist has excelled at minimizing the extent to which patients die on the waitlist, a metric that is now part of how UNOS evaluates transplant programs.

“I would never choose to let a single high-risk patient die instead of giving that individual a good chance of living,” Eason said in another statement.

Eason, however, is no longer making those choices at Methodist. This past August — after years of investigations and years of Methodist leaders celebrating Eason’s accomplishments — hospital employees were unexpectedly pulled into a conference room at the transplant center. Standing at the front of the room, along with other top executives, was the head of the health system. He shared a brief message that caught employees off guard: Eason was no longer with the James D. Eason Transplant Institute.

Methodist’s Liver Transplant Outcomes Drew Scrutiny From Investigators

The United Network for Organ Sharing launched two investigations over the past decade after Methodist University Hospital’s liver transplant program performed worse than expected.

Note: Transplant centers report data about their performance to UNOS, which along with the Scientific Registry of Transplant Recipients examines whether the performance of transplant programs was worse than expected. To do so, UNOS analyzes the extent to which transplanted livers still functioned one year after a surgery. Each percentage is based on outcomes over the prior 30-month period. For still-functioning transplants performed in the last six months of the study period, the chance of a liver continuing to function one year after the surgery is modeled after the outcomes of previous transplants in the study period. The blue line shows the percentage of Methodist patients expected to have a functioning transplanted liver at one year, based on characteristics of the liver transplant program’s prior recipients and donors. The yellow and gray lines show the chance of a patient having a functioning transplanted liver at one year, modeled after real-world outcomes. (Source: The Scientific Registry of Transplant Recipients)

Before his arrival at Methodist, Eason led another transplant center that was investigated for its poor performance during his tenure.

In the winter of 1998, Eason left his post as head of a San Antonio military hospital’s transplant center to begin a new job. He now oversaw liver and kidney transplants at the Ochsner Foundation Hospital just outside New Orleans. Eason’s team increased the number of liver transplants Ochsner performed from 23 in 1998 to 76 in 2001. But the rapid growth was followed by higher rates of deaths within a year of transplant, according to data from the Scientific Registry of Transplant Recipients.

One of Eason’s colleagues, Dr. Ari Cohen, subsequently wrote in a presentation to a group of transplant experts that the rate of adult patients living for one year after their liver transplants at Ochsner became “significantly worse than expected” between July 2002 and December 2004.

In 2005, a UNOS committee began investigating the reasons behind poor outcomes at Ochsner, according to an article written by Ochsner doctors that was later published in the health system’s academic journal. The article described the liver transplant program’s culture prior to 2005 in a way that was similar to what Methodist’s audit would turn up years later: A “feeling of fear” had left employees “unable to freely express their views” about the program’s problems.

In response to the UNOS investigation, Ochsner put together a team that determined the transplant center’s leadership was one of the biggest problems contributing to the liver program’s poor patient outcomes.

UNOS spokesperson Anne Paschke said that the organization does not comment on specific investigations. Cohen, along with other Ochsner doctors who contributed to the article, did not respond to emails or phone calls. An Ochsner spokesperson declined to respond to ProPublica and MLK50’s questions or make anyone available for an interview. Eason declined to comment on the UNOS investigation or his former colleagues’ reflections on the program under his leadership. In his statement, he said that he came to Ochsner after the program had been “closed due to loss of leadership” and that the program “went from saving zero lives to saving more than 80 lives each year.”

Before the UNOS committee completed its investigation, Eason accepted an offer that would allow him to return to his home state of Tennessee — and provide an opportunity to take another small liver transplant program and grow it even more dramatically.

In the five years following Eason’s departure, his former colleagues addressed the problems, according to the journal article. They turned Ochsner’s liver program into one of the top performers in the South, according to health care ratings organizations.

When Methodist announced Eason’s hiring in 2006, Dr. Hosein Shokouh-Amiri was deeply concerned. The veteran Methodist surgeon said he had heard about the rapid expansion of Ochsner’s transplant program and was worried that a similar approach might lead to higher rates of failed liver transplants for Methodist patients.

Amiri was afraid that Eason would override clinical decisions that Amiri or his colleagues had determined were in the best interest of patients. And so he decided to leave the transplant program shortly after Eason arrived. Before Amiri’s final day at Methodist, Eason wanted to know if he would reconsider. Sitting in Eason’s office, Amiri asked if Eason would ever require a surgeon to accept a donated liver that the surgeon would rather decline because of poor quality. Amiri recalled that Eason wouldn’t answer at first. Amiri said that when he pressed for an answer, Eason told him that he would do so if he felt it was necessary.

Dr. Hosein Shokouh-Amiri, a former surgeon at Methodist, resigned because of concerns over how Eason might lead the liver transplant program.

As Amiri saw it, Eason’s track record of boosting volume would “bypass the moral and ethical standard we had promised” to Methodist patients.

“He wanted my approval,” Amiri said. “I resigned.”

Eason did not respond to questions about Amiri’s recollections and concerns. Eason’s spokesperson, Stefan Friedman, wrote in an email that Amiri left Methodist “to go to a program that performed only 11 transplants last year with higher deaths on the waitlist and lower one-year survival rates.” Amiri said that his liver transplant program had lower survival rates “because we took sicker patients.” Federal health data confirms that Amiri’s program accepted a higher percentage of patients at high risk of death from liver disease than Methodist.

During his early years in Memphis, Eason led the dramatic growth of Methodist’s liver transplant program. The year before he started, in 2005, Amiri and his colleagues had performed 34 liver transplants. Over the next three years, Eason’s team more than tripled the hospital’s annual number of liver transplants, replacing 117 organs in 2008. Methodist leaders celebrated this growth as a historic achievement — one that allowed the liver transplant program to serve more patients in a majority Black city that had a higher poverty rate than the national average. Eason’s lawyer said in a letter that the population of the Memphis region “disproportionately suffers from co-morbidities associated with poverty” that “heighten the inherent risks of liver transplant surgery.”

By performing 126 transplants in 2009, Methodist became one of America’s 10 largest liver transplant programs. As hospitals across the country expanded their transplant centers, they stood to profit from treating more patients suffering organ failure. According to a 2009 study published in Medical Care Research and Review, the average cost of a U.S. liver transplant and the subsequent days spent recovering in the hospital was about $163,000. Around that time, The Wall Street Journal reported that some hospitals charged nearly three times as much for the surgery. Friedman said in a statement that Eason did not receive additional compensation for performing more transplants, “nor was any aspect of his compensation based on such a metric.” Methodist did not respond to questions about the program’s finances.

The growth of Methodist’s program was fueled in part by a special agreement with federal health officials that allowed the program to obtain livers across the entire state of Tennessee and parts of Arkansas and Mississippi. As the program grew, it began attracting more patients from beyond the greater Memphis area. A central Ohio minister received a liver transplant at Methodist in 2009 after being rejected by three other programs. He lived for another 12 years. A mechanic from San Juan, Puerto Rico, who experienced liver failure received a transplant at Methodist in 2010; in an interview translated by his wife, Carlos Acevedo Martinez told ProPublica and MLK50 that he had no complications and was grateful “Methodist gave him life again.”

Near the end of his third year at Methodist, Eason was in touch with his friend George Riley, a Memphis native whose parents had been doctors at Methodist. Riley, a California lawyer, wanted to know if Eason might help his client. Steve Jobs faced a long wait to get a new liver in his home state of California. His wife, Laurene Powell Jobs, had learned that people could be simultaneously added to waitlists in multiple states. Since Jobs had a plane, he could fly to whichever transplant center was willing to accept him. Tennessee, it turned out, had a shorter waitlist.

One day in March 2009, before dawn, Eason waited for Jobs’ plane at the Memphis airport. “I went to meet him and escorted him to the hospital,” Eason later told WMC-TV. One of Jobs’ biographers, Walter Isaacson, wrote that Eason closely oversaw Jobs’ care after the transplant, assigned nurses solely to his recovery and “would even stop at the convenience store to get the energy drinks Jobs liked.” Jobs later recovered in a 5,784-square-foot mansion in Memphis that Riley purchased through a shell company, according to The Commercial Appeal.

Weeks after Jobs returned home that spring, news broke of his surgery. Media outlets including CNN and The New York Times published articles that explored whether Eason gave preferential treatment to the billionaire. The surgeon pushed back: Jobs was the sickest, most deserving patient on the day that liver became available, he said. Starting that summer, Eason lived on and off in the mansion — a perk he didn’t publicly disclose at the time. Two years later, in 2011, he bought the house from the shell company for $850,000, the same price the company paid for it in 2009. (Home sale prices in the greater Memphis area had fallen in the interim.) Eason did not respond to questions about living in or buying the home.

Eason speaks with a nurse in Methodist’s transplant ward on Aug. 18, 2009. (Lance Murphey/Bloomberg via Getty Images)

Around the time of Jobs’ transplant, Methodist’s liver recipients had a better estimated chance of their organs functioning at least one year after a transplant than the national average. But in the years after Jobs’ surgery, Eason’s liver transplant program began to struggle. The rate of failed liver transplants increased between July 2010 and December 2012. As a result, the UNOS committee that had scrutinized Ochsner’s performance under Eason opened an investigation in early 2014. The committee’s work is confidential, but ProPublica and MLK50 obtained records that described the investigation. (UNOS declined to confirm when the investigation ended.)

The UNOS committee, which is composed of several dozen transplant experts who volunteer to review their peers’ programs, can recommend the discipline of transplant centers for their poor performance. But the committee rarely punished programs. In fact, the committee was so toothless that in 2018 the then-CEO of UNOS likened the committee’s investigations to “putting your kids’ artwork up at home.”

“You value it because of how it was created rather than whether it’s well done,” the UNOS leader wrote of the investigative committee. “Only in this case, we persuade ourselves that it’s well done anyway.”

Though Eason now defends the program he led, he acknowledged in an April 2014 letter to the UNOS committee that Methodist’s outcomes “were not as expected.” He pledged to address the committee’s concerns.

According to internal documents from June 2014, Methodist was anticipating potential financial fallout from those poor outcomes. A Centers for Medicare & Medicaid Services official had informed Methodist that its liver transplant program was out of compliance with federal standards because it had “significantly lower than expected” outcomes and did not have an adequate policy for evaluating the reasons behind its failed liver transplants. The official warned that CMS would terminate the liver program’s participation in Medicare, which covered the costs for nearly a third of the liver transplants performed at Methodist, if it failed to correct those problems.

In its written plan outlining how it would fix the problems, Methodist told CMS that one way it would improve outcomes was through Eason encouraging a “higher scrutiny of patients” whose risks of complications outweighed the potential benefits of surgery. Methodist ultimately avoided termination from Medicare.

But records obtained by ProPublica and MLK50 show that Methodist kept accepting patients whose poor health increased the risk of complications after a transplant. Eason’s team soon approved for transplant a 356-pound woman with a BMI of 66 and a woman who struggled so much with drinking alcohol that she only stopped after getting sick from liver failure. The team also signed off on a patient for transplant in spite of the fact that she was septic the day before the surgery. All three died within a year after their transplants.

Dr. Satheesh Nair, one of Eason’s most senior colleagues, later determined in an analysis of patient deaths that Methodist should not have placed these patients on the transplant waitlist. Nair did not respond to questions. Eason did not comment on the findings of the analysis, but said that he asked for it to be done as part of his transplant program’s efforts to improve its quality of care.

Davis, the Methodist spokesperson, also declined to comment on Nair’s findings. She said in a statement that Methodist has turned away liver transplant candidates because they “do not meet the criteria to indicate they would have successful outcomes” after a transplant.

By the time Jerry Green arrived at Methodist in 2016, the 46-year-old minister from West Memphis, Arkansas, was experiencing symptoms of liver failure, including fatigue and jaundice. As Green underwent a battery of tests, the evaluation revealed potential signs of pulmonary hypertension, according to hospital records. That condition can increase the risk of death from a transplant.

Medical experts have written in journal articles that when a transplant candidate has signs of pulmonary hypertension, additional testing, including what’s known as a right heart catheterization, should be done to more precisely determine the risk of complications during or after a transplant. If the risk is too great, liver transplant programs can either reject the patient or postpone the surgery until the patient receives care to improve their health. But “no further assessments were made,” according to an internal analysis of Green’s treatment that the liver transplant program later conducted.

Methodist doctors calculated that Green had a strong chance of surviving for three months without a transplant. But that also meant he was unlikely to get a liver from a deceased donor because he would be low on the waitlist. According to hospital records obtained by ProPublica and MLK50, Eason encouraged Green to get a transplant immediately the only way he could: by finding a living donor. Green was reluctant. But when he gave in, he asked his twin brother, Terry. He agreed.

First image: Terry Green shares a photo of himself and Jerry with their mother. Second image: Terry and Jerry as babies.

In the summer of 2016, as the Green family packed inside Methodist to support the twins, a surgeon sliced open Terry’s abdomen. It was one of the first living liver donor transplants ever performed at Methodist. Once they started Jerry’s surgery, his pulmonary arterial pressure rose so much that surgeons considered halting the transplant. Methodist providers gave Jerry medication that lowered his pressure. According to an operative report from a surgical fellow, Eason “had extensive discussion with his family, where they strongly hoped to undergo the surgery with any possible measures.” (Jerry’s wife, Jacqueline Green, said that she was notified about the concerns over his pressure but did not have an in-depth discussion with Eason about the risks of proceeding with the surgery.) Eventually, surgeons began replacing his liver with a segment of Terry’s.

Once Terry woke up, Eason stopped by to check on his abdomen. The surgeon then shared the worst news of Terry’s life. Jerry’s heart had suddenly stopped. The staff tried to revive him in the operating room but could not pull him back from the brink of death. “His heart wasn’t strong enough,” Terry remembers Eason saying. “What we learned here will help others in the future.”

After the funeral, Jacqueline met with Eason to learn more about what went wrong. As Jacqueline asked questions about Jerry’s death, Eason said that the liver transplant was successful. “It was just his heart” that failed, she recalled Eason saying.

Jacqueline Green at home next to a burial flag for her husband, Jerry Green, who served in the Marines.

The following year, Methodist enacted several new policies designed to more rigorously test patients’ cardiac and pulmonary risks ahead of a liver transplant. In the program’s internal analysis, Nair later determined that Green’s death was preventable. Jacqueline said Eason never told her about that finding.

Not long after Jerry Green’s death, Eason and nearly two dozen colleagues gathered for a confidential meeting. A familiar problem that had dogged the program was now resurfacing.

Four years earlier, in December 2012, CMS had announced it would cut off a crucial part of Methodist’s organ supply from central and east Tennessee. Some transplant experts praised the decision because they felt Methodist had unfairly benefited from an old policy that provided access to more high-quality organs from a large geographic area. To avoid shrinking what had become the nation’s fourth-largest liver program, Methodist accepted more livers that posed a higher risk of complications for their recipients. Eason’s transplant quality director later wrote in a document responding to the UNOS committee’s investigation that the strategy was justified as the country faced a chronic organ shortage. As the quality director explained, the additional risk was in “balance against the risk of candidate death on the waitlist.”

At the confidential meeting, Eason and his staff focused on a case that exemplified the perils of such risk-taking. That July, Methodist had received a liver offer from a North Carolina hospital. The liver had belonged to a 34-year-old military veteran who had struggled for years with use of hard drugs and alcohol. The way that he died required that his liver be removed after his heartbeat stopped, known as a donation after circulatory death or DCD. Such donations involve an organ that has been deprived of sufficient oxygen between the time of death and the organ’s removal. As a result, these donations can elevate the risks of complications for a recipient. That year, about 6% of U.S. liver transplants involved DCD organs, according to data from the Scientific Registry of Transplant Recipients. The data also showed Eason’s team accepted DCD livers at a percentage nearly triple the national average.

The night that Methodist received the liver offer, one of Eason’s surgeons described the donor’s history to Eugene Willard, a 61-year-old grandfather who served as the mayor of his small town of Amagon, Arkansas. Willard wanted to reject the offer, according to his daughter, Stacy Roberts. Two weeks earlier, another Methodist doctor had determined Willard would be a “suitable candidate for liver transplantation providing he loses weight,” records show. That doctor had encouraged Willard to slim down to lower his risk of complications whenever the transplant did happen. But with the offer on the table that night, the surgeon urged Willard to accept the liver, his daughter recalled. “If you don’t do it, you’re going to die,” she remembered the surgeon saying. Willard followed the surgeon’s advice and agreed to accept the organ.

After Willard’s new liver showed signs of poor function, Methodist providers ordered another biopsy to better understand his complications. This time, they saw that the donated liver had so much scarring that the early stages of cirrhosis were present. He died about a month after the surgery.

At the confidential meeting, the team concluded that the North Carolina hospital’s biopsy of the donated liver “may have been inadequate.” Eason’s team responded by approving a policy change that required surgeons to more rigorously examine biopsies before accepting livers. Nair’s analysis later determined that Willard’s death was preventable, citing “donor selection” issues.

Data from the Scientific Registry of Transplant Recipients shows that Methodist continued to accept DCD livers in 2017 and 2018 at rates higher than twice the national average. Eason’s transplant quality director later explained in the response to UNOS that Methodist’s surgeons accepted more high-risk livers because they had “access to fewer local organs than the national rate,” leaving the program little other choice for saving patient lives. The quality director defended the practice as one that “represents our effort to provide care to an underresourced patient population.”

“Most have no other opportunity or hope of transplantation,” the quality director wrote.

Over the course of 2018, Methodist’s transplant center leaders were confronting a new round of scrutiny. After a period of improved patient outcomes following the UNOS committee’s investigation four years earlier, the liver transplant program’s failure rate had again worsened. As a result, the UNOS committee opened another investigation.

Methodist responded with a step intended to help its struggling program. It hired the transplant consulting firm Guidry & East to conduct an audit of its liver transplant program’s operations.

Five transplant experts — including doctors affiliated with medical schools at the University of California, San Francisco and Cornell University — traveled to Memphis in October 2018 for the two-day audit. They toured the center’s halls, interviewed employees and reviewed liver transplant records. The experts wrote a 35-page report, a final draft of which was obtained by ProPublica and MLK50, that identified a list of problems that they said contributed to patient deaths.

Excerpt from Guidry & East’s 2018 audit of Methodist’s liver transplant program (highlights added by ProPublica)

The audit stated that Eason’s program appeared to “maximize the number of transplants by disregarding flags” as to whether patients were suitable candidates for surgery and, according to one Methodist doctor, was “currently accepting less than ideal donor organs for transplantation.” It also determined that the program had failed to thoroughly review the causes of patient deaths in order to prevent repeat mistakes with future patients, a problem previously identified during federal inspections.

To better protect patients, Eason would need to improve its policies in a way that would limit surgeons from operating on patients unlikely to survive long after transplant, in addition to limiting the number of high-risk organs the program accepted, the experts’ audit determined.

The experts also flagged problems with the hospital’s oversight of its liver transplant program. The audit noted the stark “disconnect” between Eason’s team and hospital leadership. “There is a lack of transparency in what is reported,” the experts determined.

After the audit, Methodist University Hospital President Cruickshank pledged in a letter to the UNOS committee that senior hospital leadership would “work closely” with Eason’s team to adopt Guidry & East’s recommendations. Those changes, Cruickshank said, would “once again allow us to meet the UNOS requirements and our own expectations of exceptional outcomes.” (Cruickshank, who has since left Methodist, did not respond to multiple requests for comment.)

Eason at the transplant center renaming ceremony at Methodist University Hospital in 2019. (via Methodist Le Bonheur Healthcare’s Facebook)

In February 2019, less than two months after Cruickshank’s letter, Eason stood at the renaming ceremony before his supporters, including Laurene Powell Jobs, an internationally known philanthropist who has donated to a wide variety of causes. (Powell Jobs’ social impact organization Emerson Collective contributes to numerous media organizations, including ProPublica and MLK50, and owns a majority stake in The Atlantic. Through a spokesperson, Powell Jobs declined to comment about her support of Eason and Methodist.) In the halls of Methodist’s new $275 million nine-story tower, a portion of which would be home to the transplant center that had received her donation, Eason and Powell Jobs posed for a photo before a wood-paneled wall lettered with the surgeon’s name on it.

Later that month, Methodist received a letter from the chair of the UNOS committee overseeing the investigation, whose members had met to review the Guidry & East audit. The letter stated that “recent outcomes do not seem to be improving.”

In April 2019, as Methodist was about to welcome patients to its new transplant center, Eason wrote in a letter to the UNOS committee that the liver transplant program was headed in the right direction. To address the committee’s concerns, Eason presented a detailed plan that outlined how Methodist was overhauling policies within its liver transplant program. He attached newly written guidelines that directed the program to be more stringent in accepting high-risk patients and livers. He also noted that transplant leaders were routinely holding conferences where staffers more thoroughly reviewed cases with bad outcomes, openly discussed medical mistakes and identified ways to prevent repeat errors.

“We believe our team has made tremendous progress in improving the outcomes of our Liver Transplant Program,” Eason wrote.

Davis, the Methodist spokesperson, said in a statement that Methodist “considered every recommendation” from Guidry & East and enacted some of those policies “right away.” Neither Eason nor Nair responded to questions about the Guidry & East report.

After the new transplant center facility opened that spring, the liver program’s numbers did, in fact, begin to turn around. The program’s rates of failed liver transplants continually improved in 2019 and 2020. But they did not improve enough to clear the threshold that the UNOS committee typically required to close an investigation.

In 2021, UNOS rewrote the rules for investigating transplant programs. Ian Jamieson, then the chair of the investigative committee, said that judging programs on post-transplant outcomes alone had created a “disincentive to transplantation.” To remove that barrier, UNOS leaders decided, a program would have to have far worse rates of failed liver transplants before UNOS would automatically step in to investigate.

UNOS touted the policy as “a more holistic approach” to evaluating transplant programs, since the committee would now also consider the extent to which patients were dying on the waitlist. The changes were not universally praised: Critics worried that the policy would lead to fewer transplant programs being held accountable.

Around the time the new UNOS policy began to take effect last year, the committee ended its investigations into numerous transplant programs, including the liver transplant program at Methodist.

Eason and a spokesperson for Methodist said that the investigation was closed because the program’s outcomes had improved. (UNOS declined to comment on the reason.) Eason said in his statement to ProPublica and MLK50 that UNOS’ new policy was recognition that UNOS had been relying on a transplant metric that was “outdated and invalid.” He sees that decision as part of a broader shift in which federal transplant policy is falling more in line with his philosophy to offer transplants to as many people as possible.

With outcomes improving and policy shifting, Eason seemed poised to keep leading his team at the center that bore his name. But one morning this past August, Methodist transplant center employees were unexpectedly summoned into a meeting down the hall from where the renaming ceremony had taken place. For the prior week, Eason hadn’t made his usual rounds through the halls of the transplant center. His staff even had to postpone a living donor transplant because of his absence.

Once the seats were filled, Michael Ugwueke, the president and CEO of Methodist’s six-hospital health system, asked for everyone’s attention. He informed them that Eason was no longer with the transplant center. When staffers asked what happened, Methodist executives said they couldn’t provide any details. As part of the decision, the transplant center suspended conducting liver transplants for living donors.

Methodist and Eason declined to answer questions about his departure. Methodist has scrubbed many mentions of Eason from its website. In the six months following Eason’s departure, he remained employed as the director of the Transplant Research Institute at the University of Tennessee Health Science Center, the medical school affiliated with Methodist. In late February, he retired from his tenured position, according to emails obtained through an open records request. UTHSC spokesperson Peggy Reisser declined to comment on the retirement.

So far, no hospital has publicly announced that Eason will lead its transplant center. Medical board records show that he has obtained licenses in Ohio and Pennsylvania. When ProPublica and MLK50 asked about Eason’s departure and search for a new job, his lawyer, Sacksteder, responded in a letter on March 15 that he is a “highly respected” liver transplant surgeon whose name still graces the transplant center he had helmed.

Just a few weeks later, Methodist employees noticed something had changed at the hospital. Workers had removed several signs throughout the facility. The words “James D. Eason Transplant Institute” are no longer affixed to the front of the building.

A new sign simply reads: “Methodist Transplant Institute.”

First image: The exterior of Methodist, showing the James D. Eason Transplant Institute sign, on Feb. 17. Second image: The exterior of Methodist, without Eason’s name sign, on April 18. (Andrea Morales for MLK50) Tell Us About Your Experience With the Organ Transplant System

Wendi C. Thomas and Jacob Steimer, MLK50: Justice Through Journalism, and Mollie Simon, ProPublica, contributed reporting.

Design and development by Allen Tan.

by Mark Olalde and Umar Farooq, ProPublica, and Anna V. Smith, High Country News

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The Dilkon Medical Center, a sprawling, $128 million facility on the Navajo Nation in Arizona, was completed a year ago. With an emergency room, pharmacy and housing for more than 100 staff members, the new hospital was cause for celebration in a community that has to travel long distances for all but the most basic health care.

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But there hasn’t been enough clean water to fill a large tank that stands nearby, so the hospital sits empty.

The Navajo Nation has for years been locked in contentious negotiations with the state of Arizona over water. With the tribe’s claims not yet settled, the water sources it can access are limited.

The hospital tried tapping an aquifer, but the water was too salty to use. If it could reach an agreement with the state, the tribe would have other options, perhaps even the nearby Little Colorado River. But instead, the Dilkon Medical Center’s grand opening has been postponed, and its doors remain closed.

The Dilkon Medical Center. There hasn’t been enough clean water to fill a large tank that stands nearby, so the hospital sits empty. (Sharon Chischilly for ProPublica and High Country News)

For the people of the Navajo Nation, the fight for water rights has real implications. Pipelines, wells and water tanks for communities, farms and businesses are delayed or never built.

ProPublica and High Country News reviewed every water rights settlement in the Colorado River Basin and interviewed presidents, water managers, attorneys and other officials from 20 of the 30 federally recognized basin tribes. This analysis found that Arizona, in negotiating those water settlements, is unique for the lengths it goes to extract concessions that could delay tribes’ access to more reliable sources of water and limit their economic development. The federal government has rebuked Arizona’s approach, and the architects of the state’s process acknowledge it takes too long.

The Navajo Nation has negotiated with all three states where it has land — Arizona, New Mexico and Utah — and has completed water settlements with two of them. “We’re partners in those states, New Mexico and Utah,” said Jason John, the director of the Navajo Nation Department of Water Resources, “but when it comes to Arizona, it seems like we have different agendas.”

The U.S. Supreme Court ruled in 1908 that tribes with reservations have a right to water, and most should have priority in times of shortage. But to quantify the amount and actually get that water, they must either go to court or negotiate with the state where their lands are located, the federal government and competing water users. If a tribe successfully completes the process, it stands to unlock large quantities of water and millions of dollars for pipelines, canals and other infrastructure to move that water.

But in the drought-stricken Colorado River Basin, whatever river water a tribe wins through this process comes from the state’s allocation. (The basin includes seven states, two countries and 30 federally recognized tribes between Wyoming and Mexico.) As a result, states use these negotiations to defend their share of a scarce resource. “The state perceives any strengthening of tribal sovereignty within the state boundaries as a threat to their own jurisdiction and governing authority,” said Torivio Fodder, manager of the University of Arizona’s Indigenous Governance Program and a citizen of Taos Pueblo.

While the process can be contentious anywhere, the large number of tribes in Arizona amplifies tensions: There are 22 federally recognized tribes in the state, and 10 of them have some yet-unsettled claims to water.

Federally Recognized Tribal Reservations and Trust Land in Arizona *Congress has not yet ratified the treaty that would create a reservation for the San Juan Southern Paiute Tribe out of land that is currently part of the Navajo Nation. Boundaries of reservations and trust land are from the 2018 U.S. Census. (Lucas Waldron/ProPublica)

The state — through its water department, courts and elected officials — has repeatedly used the negotiation process to try to force tribes to accept concessions unrelated to water, including a recent attempt to make the state’s approval or renewal of casino licenses contingent on water deals. In these negotiations, which often happen in secret, tribes also must agree to a state policy that precludes them from easily expanding their reservations. And hanging over the talks, should they fail, is an even worse option: navigating the state’s court system, where tribes have been mired in some of the longest-running cases in the country.

Arizona creates “additional hurdles” to settling tribes’ water claims that don’t exist in other states, said Anne Castle, the former assistant secretary for water and science at the U.S. Department of the Interior. “The tribes haven’t been able to get to settlement in some cases because Arizona would impose conditions that they find completely unacceptable,” she said.

Neither Gov. Doug Ducey, a Republican who left office in January after two terms, nor his successor, Democratic Gov. Katie Hobbs, responded to requests for comment on the state’s approach to water rights negotiations. The Arizona Department of Water Resources, which represents the state in tribal water issues, declined to answer a detailed list of questions.

Shirley Wesaw, a citizen of the Navajo Nation, lives near the yet-to-open Dilkon Medical Center. She eagerly watched as it was built, anticipating a time when her elderly parents would no longer have to spend hours in the car to see their doctors off the reservation after it was completed in June 2022. But Wesaw is familiar with the difficulty accessing water in the area. Shared wells are becoming less reliable, she said. It’s most difficult during the summer, when some of her relatives have to wake up as early as 2 a.m. to ensure there’s still water to draw from a community well.

“When it’s low, there’s a long line there,” Wesaw said, “and sometimes it runs out before you get your turn to fill up your barrels.”

Pipe Dream

One impact of Arizona’s negotiating strategy was particularly evident at the outset of the pandemic.

In May 2020, as the Navajo Nation faced the highest COVID-19 infection rate in the country, the tribe’s leaders suspected that their limited clean water supply was contributing to the virus’ spread on the reservation. They sent a plea for help to Ducey, the governor at the time.

More than a decade earlier, as the tribe was negotiating its water rights with New Mexico, Arizona officials inserted into federal legislation language blocking the tribe from bringing its New Mexico water into Arizona until it also reaches a settlement with Arizona. John, with the tribe’s water department, said the state “politically maneuvered” to force the tribe to accept its demands.

First image: Jason John, director of the Navajo Nation Department of Water Resources. Second image: The Navajo-Gallup Water Supply Project pipeline east of Window Rock, Arizona. (Sharon Chischilly for ProPublica and High Country News)

A multibillion-dollar pipeline that the federal government is building will connect the Navajo Nation’s capital of Window Rock, Arizona, to water from the San Juan River in New Mexico. But without a settlement in Arizona, the pipe can’t legally carry the water. The restriction left the tribe waiting for new sources of water, which, during the pandemic, made it difficult for people to wash hands in communities where homes lacked indoor plumbing.

“For the State of Arizona to limit the access of its citizens to drinking water is unconscionable, especially in the face of the coronavirus pandemic,” then-Navajo President Jonathan Nez and Vice President Myron Lizer wrote to the governor. Nez and Lizer included with their letter a proposed amendment that would change a single sentence in the law. They asked Ducey to help persuade Congress to pass that amendment, allowing enough water for tens of thousands of Diné residents to flow onto the reservation.

Arizona rejected the request, according to multiple former Navajo Nation officials.

The Department of Water Resources did not provide ProPublica and High Country News with public records related to the state’s denial of the Navajo Nation’s request for help getting its water to Window Rock. Hobbs’ office said it could not find the communications relating to the incident.

Land and Water

Nearly half of the tribes in Arizona are deadlocked with the state over water rights.

The Pascua Yaqui Tribe has 22,000 enrolled members, but limited land and housing allow only a third to live on its 3.5-square-mile reservation on the outskirts of Tucson. A subdivision still under construction has just started to welcome some Pascua Yaqui families to live on the reservation. But the new development isn’t nearly enough to house the more than 1,000 members on a waiting list. More than 18,000 additional acres of land would be needed to accommodate the tribe’s future population, according to a 2021 study it commissioned.

But Arizona has used water negotiations with tribes to curtail the expansion of reservations in a way no other state has.

It’s state policy that, as a condition of reaching a water settlement, tribes agree to not pursue the main method of expanding their reservations. That process, called taking land into trust, is administered by the Bureau of Indian Affairs and results in the United States taking ownership of the land for the benefit of tribes. Alternatively, tribes can get approval from Congress to take land into trust, but that process can be more fraught, requiring expensive lobbying and travel to Washington, D.C.

The policy will force the Pascua Yaqui “to choose between houses for our families and water certainty for our Tribe and our neighbors,” then-Chairman Robert Valencia wrote to the Department of Water Resources in 2020. “While we understand that our Tribe must make real compromises as part of settlement, this sort of toll for settlement that is unrelated to water is unreasonable and harmful.”

Despite the construction of new homes on the Pascua Yaqui Tribe’s reservation, there is still a long waiting list of members hoping to move there. (Russel Albert Daniels for ProPublica and High Country News)

For tribes across Arizona and the region, building homes and expanding economic opportunities to allow their members to move to reservations is a top priority.

The Pueblo of Zuni was the first tribe to agree to Arizona’s land requirement when it settled its water rights with the state in 2003. The Zuni had hoped to take into trust more land they own near their most sacred sites in eastern Arizona, but that will now require an act of Congress. Since the Zuni settlement, all four tribes that have settled water rights claims with Arizona have been required to agree to the same limit on expansion, according to ProPublica and High Country News’ review of every completed settlement in the state.

In a 2020 letter, the Navajo Nation’s then-attorney general called the state’s opposition to expansion “an invasion of the Nation’s sovereign authority over its lands and so abhorrent as to render the settlement untenable.”

The Department of the Interior, which negotiates alongside tribes, has agreed, objecting on multiple occasions in statements to Congress to Arizona’s use of water negotiations to limit the expansion of reservations. In 2022, as the Hualapai Indian Tribe settled its rights, the department called the state’s policy “contrary to this Administration’s strong support for returning ancestral lands to Tribes.”

Tribes in Arizona Often Wait Decades to Secure Water Rights

Seven federally recognized tribes in Arizona have filed but not settled any of their claims to water rights. The settlement process can take decades and wind through courts and Congress.

Note: Dates for the chart reflect the first year a tribe filed a claim for comprehensive water rights, known as Winters rights, after the 1908 Supreme Court decision that ruled reservations have inherent water rights meant to support a tribal homeland. In some cases, those rights are recognized through a court ruling, in others through an out-of-court settlement. Some tribes’ Winters rights, like the Tohono O’odham Nation’s, have only been partially settled. Data provided by Leslie Sanchez, a postdoctoral fellow at the U.S. Forest Service’s Rocky Mountain Research Station. (Lucas Waldron/ProPublica)

Tom Buschatzke, director of the state’s Department of Water Resources, explained the reasoning behind Arizona’s stance to state lawmakers, noting it’s based on Arizona’s interpretation of a century-old federal law that Congress is the only legal avenue for tribes to take land into trust. “The idea of having that tribe go back to Congress is so that there’s transparency in a hearing in front of Congress so the folks in Arizona who might have concerns can get up and express those concerns and then Congress can act accordingly,” he told the Legislature, adding that the Bureau of Indian Affairs’ process, meanwhile, puts the decision in “the hands of a bureaucrat in Washington, D.C.”

The state water department has even gone outside water rights negotiations to challenge reservation expansion without an act of Congress. When the Yavapai-Apache Nation filed a trust land application with the Bureau of Indian Affairs in 2001, the Department of Water Resources fought it, according to documents obtained via a public records request. The department went on to argue in an appeal that the trust land transfer would infringe on other parties’ water rights. A federal appellate board eventually ruled in favor of the tribe, but the state’s opposition contributed to a five-year delay in completing the land transition.

Pascua Yaqui Chairman Peter Yucupicio has watched non-Indigenous communities grow as he works to secure land and water for his tribe. “They put the tribes through the wringer,” he said.

Pascua Yaqui Chairman Peter Yucupicio said that the process to secure land and water puts tribes “through the wringer.” (Russel Albert Daniels for ProPublica and High Country News) Arizona’s Demands

No one has defined the terms of water negotiations between Arizona and tribes more than former U.S. Sen. Jon Kyl.

Before entering politics, he was a long-time attorney for the Salt River Project, a water and electric utility serving parts of metro Phoenix. During that time, he lobbied for and consulted on state rules that force tribes to litigate water disputes in state court if they’re unable to reach a settlement. After landing in the Senate, Kyl and his office oversaw meetings where parties hashed out disputes, and he viewed his role as that of a mediator. He helped negotiate or pass legislation for the water rights of at least seven tribes.

“I wasn’t taking a side,” Kyl told ProPublica and High Country News, “but I was interested in seeing if they could all reach agreements.”

Tribes, though, often didn’t see him as a neutral party, pointing especially to his handling of negotiations for the Navajo Nation and the Hopi Tribe. He was shepherding a proposed settlement for the tribes through Congress in 2010 when he withdrew support, saying the price of the infrastructure called for in the proposal was too high to get the needed votes. A 2012 version of the tribes’ settlement also died after he added an extension to allow a controversial coal mine to continue operating.

Even when Kyl wasn’t directly involved, tribes were pushed to accept concessions, including limits on how they used their water. Settlements across the basin, including in Arizona, typically contain limits on how much water tribes can market, leaving unused water flowing downstream to the next person in line to use for free.

And several tribes in Arizona were asked to give up the ability to raise legal objections if other users’ groundwater pumping depleted water underneath their reservation.

Jon Kyl played a major role in negotiating water settlements between tribes and Arizona when he served in the U.S. Senate. (Drew Angerer/The New York Times/Redux)

Tribes also often have had to trade the priority of their water — the order in which supply is cut in times of shortage like the current megadrought — to access water. The Bureau of Reclamation recently proposed drastic cuts to Colorado River usage, and, in one scenario based on priority, a quarter of the proposed cuts to allocations would come from tribes in Arizona.

“Some of the Native American folks had a hard time with the concept that they had to give up rights in order to get rights,” Kyl said, adding that tribes risked getting nothing if they kept holding out. “If you’re going to resolve a dispute, sometimes you have to compromise.”

Given the long list of terms Arizona typically pursues, some tribes have been hesitant to settle — which can leave them with an uncertain water supply — so the state has tried to push them.

In 2020, Arizona legislators targeted the casino industry — the economic lifeblood of many tribes. Seven Republicans, including the speaker of the House and Senate president, introduced a bill to bar tribes from obtaining or renewing gaming licenses if they had unresolved water rights litigation with the state. The bill failed, but Rusty Bowers, the House speaker at the time, said the legislation was intended to put the state on a level playing field with tribes. “Where is our leverage on anything?” Bowers said. If tribes weren’t using the water, then others would do so amid a drought in the growing state, he said.

The Pascua Yaqui reservation, with a casino and golf course, lower left. Arizona Republicans introduced a bill in 2020 to bar tribes from renewing casino licenses if they had unresolved water rights litigation with the state. The measure failed. (Russel Albert Daniels for ProPublica and High Country News. Aerial support provided by LightHawk.)

The state’s economic and population growth has presented tribes with other challenges. They must now negotiate not only with the state and federal governments but also with the businesses, cities and utilities that have in the interim made competing claims to water.

It has taken an average of about 18 years for Arizona tribes to reach even a partial water rights settlement, according to a ProPublica and High Country News analysis of data collected by Leslie Sanchez, a postdoctoral fellow at the U.S. Forest Service’s Rocky Mountain Research Station, who researches the economics of tribal water settlements. The Arizona tribes that filed a claim but are still in the process of settling it have been waiting an average of 34 years.

Chairman Calvin Johnson of the Tonto Apache Tribe — with a small reservation next to the Arizona mountain town of Payson — remembers as a child watching his uncle, then the chairman, begin the fight in 1985 to get a water rights settlement.

Still without a settlement, the tribe hopes to one day plant orchards for a farming business, build more housing to support its growing population and reduce its reliance on Payson for water, Johnson said. But, faced with Arizona’s demands, the tribe has not yet accepted a deal.

“The feeling that a lot of the older tribal members have is that it’s not ever going to happen, that we probably won’t see it in our lifetime,” Johnson said.

Turning to the Courts

Tribes that hope to avoid Arizona’s aggressive tactics can instead go to court — an even riskier gamble that drags on and takes the decision-making out of the hands of the negotiating parties.

The Kaibab Band of Paiute Indians is the only federally recognized tribe in Arizona yet to file a claim for its water. It has a reservation near the North Rim of the Grand Canyon, but with 400 members and minimal resources, the tribe would face a daunting path forward. To settle its rights, the tribe would have to engage in court proceedings to divvy up Kanab Creek, the only waterway that crosses its reservation; bring to the courtroom anyone with a potential competing claim to the creek’s water; find money to complete scientific studies estimating historical flows; and then, because the waterway spans multiple states, possibly face interstate litigation before the Supreme Court.

“It’s about creating and sustaining that permanent homeland,” said Alice Walker, an attorney for the band, but the path between the tribe and that water “boils down to all of those complex, expensive steps.”

Arguing before the Supreme Court on behalf of Arizona and other parties in 1983, Kyl successfully defended a challenge to a law called the McCarran Amendment that allowed state courts to take over jurisdiction of tribal water rights claims.

“Tribes are subject to the vagaries of different state politics, different state processes,” explained Dylan Hedden-Nicely, director of the Native American Law Program at the University of Idaho and a citizen of the Cherokee Nation. “As a result, two tribes with identical language in their treaties might end up having, ultimately, very different water rights on their reservations.”

Some states, such as Colorado, set up special water courts or commissions to more efficiently settle water rights. Arizona did not. Instead, its court system has created gridlock. Hydrological studies needed from the Department of Water Resources take years to complete, and state laws add confusion over how to distinguish between surface and groundwater.

Two cases in Arizona state court that involve various tribes — one to divide the Gila River and another for the Little Colorado River — have dragged on for decades. The parties, which include every person, tribe or company that has a claim to water from the rivers, number in the tens of thousands. Just one judge, who also handles other litigation, oversees both cases.

Even Kyl now acknowledges the system’s flaws. “Everybody is in favor of speeding up the process,” he said.

After years of negotiations that failed to produce a settlement, the Navajo Nation went to court in 2003 to force a deal. Eventually, the case reached the Supreme Court, which heard it this March. Tribes and legal experts are concerned the court could use the case to target its 1908 precedent that guaranteed tribes’ right to water, a ruling that would risk the future of any tribes with unsettled water claims.

The Navajo Nation, according to newly inaugurated President Buu Nygren, has huge untapped economic potential. “We’re getting to that point in time where we can actually start fulfilling a lot of those dreams and hopes,” he said. “What it’s going to require is water.”

The Navajo Nation has untapped economic potential, according to President Buu Nygren, but realizing it will require water. (Sharon Chischilly for ProPublica and High Country News)

Just across the Arizona-New Mexico border, not far from Nygren’s office in Window Rock, construction crews have been installing the 17 miles of pipeline that could one day deliver large volumes of the tribe’s water to its communities and unlock that potential. Because of Arizona’s changes to the federal law, that day won’t come until the state and the Navajo Nation reach a water settlement.

For now, the pipeline will remain empty.

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by Molly Parker, Lee Enterprises Midwest, and Beth Hundsdorfer, Capitol News Illinois

This article was produced for ProPublica’s Local Reporting Network in partnership with Lee Enterprises, along with Capitol News Illinois. Sign up for Dispatches to get stories like this one as soon as they are published.

Illinois Gov. J.B. Pritzker signed a bill into law on Friday that strengthens the range of penalties that a state watchdog can mete out for health care employees who conspire to hide abuse or interfere with investigations by the state police or internal oversight bodies.

The legislation was introduced following an investigative series by Capitol News Illinois, Lee Enterprises Midwest and ProPublica into rampant abuses and cover-ups at Choate Mental Health and Developmental Center, a state-run institution in southern Illinois that houses people with intellectual and developmental disabilities and mental illnesses. The new law applies to employees at state-run institutions and at privately operated community agencies for people with developmental disabilities and mental illnesses that operate under the oversight of the Illinois Department of Human Services and its Office of the Inspector General.

The news organizations detailed how employees had lied to investigators, leaked sensitive investigative details, retaliated against people who reported abuse and sought to indoctrinate new workers into the cover-up culture. Employees who engaged in such actions made it difficult to pursue cases of patient abuse, yet they rarely faced serious consequences. IDHS Inspector General Peter Neumer suggested the change in law last year.

The new law allows the OIG to report workers who engage in such misconduct to Illinois’ existing Health Care Worker Registry, which would bar them from working in any health care setting in the state.

The registry identifies any health care worker who has been barred from working with vulnerable populations in any long-term care setting, such as state-operated developmental centers or group homes. Under prior law, workers could be barred because they had been found to have engaged in financial exploitation; neglect that is considered “egregious”; or physical or sexual abuse. The new law adds “material obstruction” of an investigation to the list of findings that can be reported to the registry, which is maintained by the Illinois Department of Public Health.

Pritzker signed the bill on the same day the IDHS inspector general released a 34-page report that recommended a “top to bottom analysis” of all processes related to the reporting of abuse and neglect at Choate “because at the present time there appear to be fundamental problems with all aspects of that system.”

The OIG report referenced the beating of a patient with a developmental disability by Choate staff in December 2014 that was covered by the news outlets. Four mental health technicians were charged with felonies in connection to the beating. Three of them pleaded guilty to failing to comply with abuse reporting laws for state employees, and one — Mark Allen, a mental health technician who had been originally charged with felony aggravated battery — pleaded guilty to felony obstruction of justice.

The report noted that at least eight people colluded to obstruct the state police and OIG investigation. Few staff members were forthcoming with details, even though they later told investigators it was the worst case of abuse they had ever seen.

“This was a textbook example of a code of silence, in which staff seek to protect each other from the consequences of their misconduct by remaining silent about what they witnessed or lying to protect their fellow employees,” the new OIG report stated. While Allen was ultimately reported to the registry after the inspector general found him responsible for the abuse, the other three were not. Even though they were criminally convicted of failing to report what they’d witnessed, and the inspector general found that they had engaged in the cover-up, prior law did not include obstruction as a reportable offense.

The new law is a “necessary reform that will provide additional protection for residents and hold accountable any bad actors who violate the trust of a resident or patient,” Alex Gough, a spokesperson for Pritzker, said in a statement.

“Governor Pritzker continues to take the longstanding problems at Choate very seriously, and he remains committed to providing a healthy, safe living environment for every single person residing in the state’s care.”

On Monday, Neumer said in a statement that he was pleased that the governor and legislators supported the measure, which passed both chambers unanimously, because it “serves as a strong deterrent to those who would engage in ‘code of silence’-type conduct, where employees lie or omit key facts to investigators in an effort to protect themselves and/or their fellow employees.”

“When employees fully and completely cooperate with OIG’s investigations, that also enhances OIG’s ability to fact-find, which serves as an additional deterrent to misconduct,” he said.

IDHS Secretary Grace Hou noted in a letter to Neumer, which was included in the inspector general’s report, that she also had backed the legislative change. That is one of several steps her department has taken to address conditions at Choate and in the agency’s 12 other developmental centers and psychiatric hospitals, the letter said.

In a statement, Marisa Kollias, a spokesperson for IDHS, said that a “system-wide transformation” of the agency’s facilities is already underway.

In March, Pritzker and Hou announced that more than 120 residents of Choate — about half of the facility’s population — would have to move out for their safety. The residents and their guardians were given up to three years to find an alternative placement, such as in a community group home or another state-run facility.

In addition to the relocation of some of Choate’s residents, the department has also hired a chief resident safety officer and is implementing other safety enhancements.

Kollias noted that Hou asked the inspector general to conduct the review of Choate last September, the same month the news organizations published their first in a series of reports about Choate.

“IDHS leadership continues to be deeply concerned by the events investigated and reported on by the OIG,” Kollias said. “The report underscores the importance of actions that IDHS has taken since the beginning of the administration, including substantially expanding training, hiring new staff and installing security cameras.”

The inspector general has repeatedly called for the installation of security cameras at Choate and in other IDHS facilities, but the department had previously said that doing so was complicated by federal regulations. The department said late last week that the Centers for Medicare and Medicaid Services, which partially funds its institutional care, has provided new guidance that will allow for the installation of cameras in indoor, common area locations. The department, the statement said, “will be installing those expeditiously.”

by Marilyn W. Thompson

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Election maps across the Deep South are likely to be redrawn because of a surprise Supreme Court ruling that upheld a key provision of the Voting Rights Act, changes that could alter the balance of power that has given Republicans a razor-thin majority in Congress.

The court’s 5-4 decision in Allen v. Milligan, written for the majority by Chief Justice John Roberts, affirmed the section of the act that prohibits maps drawn to dilute minority voting strength. It was an unexpected victory for a law passed in 1965, which has been gradually dismantled under the Roberts court.

The Supreme Court is now expected to rule quickly on a similar challenge to election maps pending in Louisiana, which could create another congressional district favorable to Democrats in addition to the one in Alabama.

And a racial gerrymandering case from South Carolina is moving toward oral arguments in October. Republican state leaders appealed a decision from a three-judge federal panel that found illegal targeting of Black voters in a map that gave the GOP control of the state’s last remaining swing district. If the panel’s decision is upheld, the Republican-led legislature will have to redraw the lines for the 1st Congressional District.

Republicans won a slim majority in the House in 2022 as legal challenges over redistricting simmered, including the one in Alabama, which the court stayed until after the election. If all of the redistricting challenges were resolved in favor of minority plaintiffs, that could dramatically impact the composition of Congress in 2024. David Wasserman, a senior editor at Cook Political Report, said states creating new majority-minority districts may also need to reconfigure numerous surrounding districts, further altering election maps.

The ruling did not expand the Voting Rights Act but merely maintained the status quo. Nevertheless, it was an unexpected setback to the Republican Party’s redistricting operation. Alabama’s Republican-led Legislature drew only one seat offering an opportunity for Black candidates to win. Black Alabama voters had hoped to create a second congressional district that would offer an opportunity for an additional seat for a minority candidate. Today, 2 in 7 Alabama voters are Black but 6 of 7 congressional seats are held by white politicians. Republicans argued in a court brief that Democrats were “exploiting” the opening created by the Alabama case to make a power grab.

Roberts’ opinion brought a strongly worded dissent from conservative Justice Clarence Thomas, who accused the majority — including his colleague Brett M. Kavanaugh — of creating a “consciously segregated districting system” in the name of the Voting Rights Act.

But the South Carolina case offers a case study in how nuanced redistricting cases can be. A ProPublica story in May showed that one of the state’s most powerful Democrats, Rep. Jim Clyburn, made recommendations behind the scenes to protect his seat. That ultimately also helped the GOP. Lawyers for South Carolina Republican leaders argued that they did not intentionally target Black voters and followed Clyburn’s wishes.

Any state with a long history of “extremely polarized” voting is likely to feel the impact of the Alabama decision, which relied heavily on expert analysis of “airtight data” of racial voting patterns, said Christian R. Grose, a University of Southern California political science professor.

A pending federal case in El Paso, Texas, brought by MALDEF, a Latino civil rights organization, challenges maps drawn in 2021 by the Texas Legislature that limited the number of districts in which Black and Latino people make up the majority of eligible voters. Nina Perales, MALDEF’s vice president for litigation, said she’s encouraged by the Alabama decision, which “affirmed the traditional test” for fair maps and “closed the door on fringe theories that undermine voting rights.”

The Louisiana case was put on hold while the court considered Alabama, and minority groups believe a favorable decision could unlock a second majority Black district in the state. Louisiana’s Republican attorney general, Jeff Landry, asked the court in a letter to schedule oral arguments in the dispute.

In Florida, a map drawn by Gov. Ron DeSantis and approved by the Legislature may have violated the state constitution in eliminating a congressional district held by a Black Democrat. Voting rights groups have challenged the map, and a Democratic consultant told the Tampa Bay Times that the Alabama decision could signal to the courts that race is a legitimate factor to consider in redistricting.

Richard Pildes, a constitutional law professor at New York University, said the Alabama case shows that states now have new technologies that “allow plaintiffs to search out potential VRA districts in ways not possible in prior decades.” This makes it harder for states to make excuses that they could not draw maps offering opportunities for minority voters.

Marina Jenkins, executive director of the National Democratic Foundation, which provided legal support for the Alabama plaintiffs, said she expects the court to move quickly to send some of the disputed maps back to state legislatures for redrawing. The process will not always be smooth, she said, since some of the lawmakers have resisted efforts to broaden minority representation. If legislatures do not act, the courts could step in to remedy the mapping errors.

Democrats in Alabama believed the Supreme Court thwarted minorities in 2022 by delaying its consideration of the case until after the election.

“We’re obviously very happy to see success in the case and excited that voters will be able to have more fair representation,” Jenkins said. “But it is obviously disappointing that this could have been representation that those voters already had.”

by A.C. Thompson, ProPublica and FRONTLINE, Kartikay Mehrotra, ProPublica, and Julia Ingram, FRONTLINE

This story describes fatal car-crash injuries.

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“America’s Dangerous Trucks” is part of a collaborative investigation from FRONTLINE and ProPublica. The documentary premieres Tuesday, June 13, 2023, at 10 p.m. EDT/9 p.m. CDT on PBS stations (check local listings) and will be available to stream on YouTube, the PBS App and FRONTLINE’s website.

It was a little after 7 p.m. and Ricardo Marcos was rolling through the darkness in his gray Hyundai Elantra.

Marcos had spent a long day toiling as a mechanic at a trucking company in McAllen, Texas, a sunbaked city nestled right on the U.S.-Mexico border.

Now he was headed home on U.S. Route 281, a long swath of asphalt that runs parallel to the Rio Grande in this part of Texas. His wife, Irma Orive, was waiting for him.

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But Marcos, 61, never made it.

Big commercial trucks are ubiquitous in this part of the world, an endless stream of massive diesel-powered vehicles ferrying goods across the border, and on his drive home, Marcos encountered a large truck pulling a 53-foot trailer. The truck edged out of a driveway and began, slowly, to turn left onto the road, blocking traffic in both directions. It was as if someone had erected a big steel wall.

Video shows what happened next on that night in 2017. Traveling at more than 40 mph, Marcos’s Hyundai slammed violently into the larger vehicle and became wedged beneath it. The impact ripped the top half of the car apart. Marcos did not survive.

Ricardo Marcos died after a collision in which his Hyundai Elantra became wedged under a tractor-trailer. (Courtesy of Irma Orive)

The collision did terrible things to his body, breaking his ribs, lacerating his liver and spleen, snapping his neck and damaging the frontal lobes of his brain, according to the medical examiner’s report.

An investigator with the local police department blamed the collision on the truck driver, who was initially charged with negligent homicide, though charges were eventually dropped. ProPublica and FRONTLINE were unable to contact the trucker.

“I still miss him. I miss him every day,” said his widow, 70. “We did everything together.”

Ricardo Marcos and Irma Orive in 2009, first image, and in 2011, second image. (Courtesy of Irma Orive)

The incident was awful and tragic. But it wasn’t particularly uncommon. Collisions in which a passenger vehicle such as a car, SUV or pickup truck slides beneath a large commercial truck are called underride crashes in the jargon of the transportation industry. And they happen all the time: Each year hundreds of Americans die in this type of collision.

The federal government has been aware of the problem for at least five decades.

Reporters for ProPublica and FRONTLINE obtained thousands of pages of government documents on underride crashes — technical research reports, meeting notes, memoranda and correspondence — dating back to the 1960s. The records reveal a remarkable and disturbing hidden history, a case study of government inaction in the face of an obvious threat to public wellbeing. Year after year, federal officials at the National Highway Traffic Safety Administration, the country’s primary roadway safety agency, ignored credible scientific research and failed to take simple steps to limit the hazards of underride crashes.

NHTSA officials failed to act, in part, because they didn’t know how many people were killed in the crashes. Their poor efforts at collecting data over the years left them unable to determine the scale of the problem. This spring the agency publicly acknowledged that it has failed to accurately count underride collisions for decades.

According to NHTSA’s latest figures, more than 400 people died in underride crashes in 2021, the most recent year for which data is available. But experts say the true number of deaths is likely higher.

Records show the agency often deferred to the wishes of the trucking industry, whose lobbyists repeatedly complained that simple safety measures would be prohibitively expensive and do lasting damage to the American economy. During the 1980s, for example, industry leaders argued they couldn’t afford to equip trucks with stronger rear bumpers, which are also called rear underride guards; the devices are meant to prevent cars from slipping beneath the trailer during a rear-end collision. The beefier, more robust rear guards would’ve cost an additional $127 each, according to industry estimates.

David Friedman was a top official at NHTSA during the Obama years. “NHTSA has been trying, for decades, to do something about underride deaths. And yet over and over, they haven’t made the progress that we need. Why? Well, I think part of it is because industry just keeps pushing back and undermining their efforts,” said Friedman, who served as the agency’s acting administrator in 2014. “There are so many hurdles put in the way of NHTSA staff when it comes to putting a rule on the books that could address issues like underride.”

The technology at issue — strong steel guards mounted to the back and sides of trucks — is simple and “relatively inexpensive,” Friedman argued. “The costs are small.”

Rear and side underride guards can prevent smaller vehicles from sliding under trucks in some crashes. (Illustrations by Matt Twombly)

The circumstances surrounding underride crashes vary widely. In some cases, the driver of the smaller vehicle is at fault — they are speeding, texting or simply not paying enough attention to the road. In other cases, the trucker is to blame. Take, for example, a crash that occurred in Caledonia, Wisconsin, in 2020. A truck going roughly 40 mph blew past a stop sign at a four-way intersection. A Volkswagen SUV plowed directly into the side of the larger machine, became trapped between the wheels of the truck and was dragged down the block as shards of glass, steel and plastic shot into the air like shrapnel; miraculously, the SUV driver survived. Police cited the trucker, who declined to be interviewed.

The biggest trucks on the road — properly called tractor-trailers or semi trucks — consist of two parts. At the front is the tractor, which is equipped with a high-horsepower engine capable of pulling 80,000 pounds. A hitch connects it to the trailer, which can range from 28 feet to more than 50 feet long. The typical semitrailer rolls on an array of giant wheels, its floor sitting nearly 4 feet off the ground.

Modern automobiles come equipped with a host of meticulously engineered safety technologies. There are bumpers and crumple zones meant to absorb kinetic energy and reduce the violence of an impact. There are airbags to cushion the driver and passengers.

But in an underride crash, these technologies are rendered moot by the height difference between a large truck and the average passenger vehicle. Typically, it is the windshield of the smaller vehicle that takes the brunt of impact, slamming into the bottom edge of the trailer as the steel pillars holding up the car’s roof collapse. In many cases the airbags don’t even deploy.

Watch video ➜

Crash test videos from 2017 show how crashes can play out dramatically differently for the passengers in the smaller vehicle. One truck is equipped with only a fiberglass skirt for fuel-efficiency. The other has a steel side underride guard. (Videos provided by Insurance Institute for Highway Safety)

Watch video ➜

This violent sequence of events often produces grievous injuries. Start looking at underride crashes and you’ll quickly notice a pattern of awful head injuries: broken skulls, severely damaged brains, even decapitations. Some victims suffer crushing injuries to the torso or get speared in the chest by jagged chunks of steel.

Truck drivers are rarely harmed in the crashes.

NHTSA officials and Transportation Secretary Pete Buttigieg declined to be interviewed by ProPublica and FRONTLINE. NHTSA did not respond to written questions from the news organizations, including about why the agency had moved so slowly to address the lethal hazards posed by underride collisions. In a statement, NHTSA defended its record, noting that it had recently created a committee to study the issue and developed new safety rules; it had been directed to take those steps by federal legislation passed in 2021. “Safety is the top priority for the U.S. Department of Transportation and NHTSA,” the agency said.

The American Trucking Associations, a trade group representing the nation’s major commercial haulers, for decades opposed safety regulations that would’ve improved rear underride guards and saved lives. Dan Horvath, the ATA’s vice president for safety policy, said he has little information about the organization’s past positions, but he acknowledged that costs were “a very real factor” for the industry.

Trucking companies now spend billions annually to improve safety, investing in everything from new braking systems to stringent drug-testing for drivers, Horvath said. “Safety is not just a slogan with our members,” he added. “It’s really the fundamental foundation of their operations.”

Eventually the ATA came to support government rules aimed at improving rear guards.

Still, the ATA and other industry groups are continuing to fight congressional efforts to require semitrailers to be equipped with side guards, which could prevent underride crashes like the one that killed Marcos. They said there’s not enough research to support a government mandate, which would impose huge costs on businesses that operate on thin profit margins.

During these five decades of industry resistance and government paralysis, thousands of people have died.

I. Decades of Delay

The year was 1967 and Hollywood star Jayne Mansfield was riding in the front seat of a gray Buick Electra, a massive boat of a sedan, cruising along U.S. Route 90 in Louisiana. It was after 2 in the morning. Ahead of the Buick, a semi truck had slowed to about 35 mph.

Mansfield’s driver failed to brake in time, striking the rear of the vehicle. The Buick’s long hood slid beneath the belly of the semitrailer. The top half of the car was destroyed. The actress and two others were killed. Mansfield’s three children, who’d been riding in the back of the vehicle, survived. One of them, Mariska Hargitay, is now an actor in the “Law & Order” TV franchise.

First image: A man reads about the death of actress Jayne Mansfield in a car crash in 1967. Second image: The 1966 Buick Electra 225 in which Mansfield and two others were killed in an underride crash outside New Orleans. (Robert Simmons/Pix/Michael Ochs Archive/Getty Images)

In the days after Mansfield’s death, leaders at the Department of Transportation began looking into underride crashes — and they quickly made a worrisome discovery.

The federal regulations in place at the time required that large trucks and semitrailers come equipped with a rear bumper, known as a rear guard, meant to prevent underride collisions. But the rules were lax: The guard could hang as much as 30 inches off the ground, far higher than the typical car bumper, and didn’t have to cover the full width of the truck or trailer. And it didn’t have to meet any strength standards.

Most rear guards of this era consisted of three pieces of rectangular steel: a horizontal bar welded to two vertical beams that bolted to the bottom of the trailer. Often crudely fashioned from thin, low-grade metal, the guards did little to prevent underrides — they had a tendency to simply collapse when hit.

A bigger guard built from stronger materials, top officials realized, could save lives.

They announced plans for a new regulation requiring tougher, more substantial guards. “Accident reports indicate that rear end collisions in which underride occurs are much more likely to cause fatalities than collisions generally,” the department noted in a 1969 statement regarding the proposed regulation.

The proposal was not well received by the major trucking companies or the firms that built and sold trucks and semitrailers. In a 1970 letter to the department, the ATA complained about “the unfairness of inflicting upon the industry the heavy cost penalty which would be brought about by the incorporation of a guard of the proposed type.”

The Truck Trailer Manufacturers Association, a lobbying outfit representing semitrailer builders, had little desire to make safer rear guards. In correspondence with the department, the TTMA said it would be “far more practical” to force Volkswagen and other companies making compact cars to produce larger vehicles that were less likely to slip beneath a truck.

Facing backlash, the department scuttled its proposed regulation. “At the present time, the safety benefits … would not be commensurate with the costs of implementing the proposed requirements,” officials wrote in a statement explaining their decision.

Congress in 1970 established NHTSA, giving the new agency broad powers to reduce the number of deaths and serious injuries on America’s roadways. The agency would function as a unit within the larger Department of Transportation, a vast and sprawling bureaucracy tasked with overseeing everything from ships and planes to trains and automobiles. It was a moment of growing public concern over the carnage on America’s roadways — concern fueled in part by consumer advocate Ralph Nader’s damning exposes.

NHTSA immediately took on the underride issue, commissioning a series of studies by scientists in Arizona who ran Chevrolet Impalas and VW Rabbits into rear guards mounted on a simulated semitrailer body. The researchers determined the guards needed to be built bigger and stronger to prevent underrides.

Days before Ronald Reagan was sworn in as president in 1981, NHTSA went public with a revised rule that would beef up the rear guards on trucks and semitrailers. The cost was minimal: The agency estimated the new guards would cost $50 more per vehicle.

But the ATA and other trade organizations voiced their unhappiness about the added expense, which they believed would come out to $127 per trailer. As they had a decade earlier, they said the guards cost too much and would not save many lives.

After Reagan took office, NHTSA underwent a dramatic transformation. The new president had campaigned on promises to slash government regulation, which he saw as an unfair burden on the American economy, and he quickly began reshaping the executive branch.

He installed a new administrator at NHTSA, Raymond Peck Jr., a former lobbyist for the coal industry, who fired agency workers, rescinded existing safety rules and delayed regulations that were under development. The underride rule was jettisoned.

The entire regulatory process at NHTSA “came to a halt,” recalled Lou Lombardo, a physicist who was at the agency at the time. “We had nothing, nothing, nothing to do.”

Asked if people died as a result of the agency’s failure to act on rear underride crashes, Lombardo had an instant reply: “Oh heck yes.”

II. Devastating Consequences

Matt Brumbelow demolishes cars and trucks for a living.

At a sophisticated laboratory near Charlottesville, Virginia, he spends his days smashing brand new vehicles into a slab of superhard concrete and steel. The goal, always, is to identify hidden vulnerabilities — doors that collapse catastrophically, car seats and headrests that could worsen whiplash injuries during a violent impact. A complex pulley system is used to yank the pristine cars, trucks and SUVs — loaded with sensors, and, in some cases, biomechanical dummies — into the test block.

“I love it,” said Brumbelow, who has a degree in mechanical engineering from the University of Virginia. “It’s definitely more than a job.”

First image: Demolished crash test vehicles at a laboratory run by the Insurance Institute for Highway Safety. Second image: Matt Brumbelow at the lab. (FRONTLINE)

He gave journalists from ProPublica and FRONTLINE a tour of the facility, which is run by the Insurance Institute for Highway Safety, a nonprofit organization dedicated to reducing the harm done by motor vehicle crashes on the nation’s roads. The lab looks like the world’s tidiest and best-lit auto salvage lot — horribly mangled vehicles are everywhere.

By the 1990s, NHTSA had finally adopted a regulation requiring tougher rear guards. The new requirements only applied to newly built semitrailers; older models that were already on the road were exempted.

It took effect in 1998, more than 30 years after Mansfield’s death first drew attention to the issue.

In time, though, it became clear to Brumbelow and his colleagues that this landmark safety regulation was deeply flawed. Sifting through the data from 1,070 collisions, Brumbelow and his team noticed a distinct pattern: Guards built to the new federal standard were still failing, leading to severe underride crashes.

NHTSA, he believed, hadn’t done enough testing on these new guards to see how they would perform under real-world conditions. And other countries had established much more stringent standards — guards used just across the border in Canada, for example, had to be far stronger than those required under NHTSA’s 1998 rule.

By 2010, the institute had purchased a fleet of Chevrolet Malibu sedans and was slamming them into semitrailers equipped with guards meeting the updated federal standard. The results were dismal. “In crash tests that we were running at 35 miles an hour, they were failing,” he recalled.

Watch video ➜

A rear guard that met the 1998 federal standards fails on impact in this test, while the stronger rear guard proves capable of stopping an underride. It took the government more than two decades to mandate the stronger guards. (Videos provided by Insurance Institute for Highway Safety)

Watch video ➜

Brumbelow and his colleagues tested guards made by the eight largest semitrailer manufacturers in the U.S. All but one of them collapsed catastrophically; if these had been real crashes, the people in the cars would’ve been killed or badly injured.

One of the Malibus is still sitting on the floor of the lab. It bears the signature wounds of an underride crash: There is no damage to the bumper and the hood is only mildly dented, but the windshield has been destroyed and the roof is shredded. The dummy in the driver’s seat fared very poorly.

“It’s clear the standard is inadequate,” he said, adding that in his view NHTSA is making crucial policy decisions based on “bad science.”

NHTSA’s dubious decisions have had devastating consequences in the real world.

In 2013, Marianne Karth was behind the wheel of her Ford Crown Victoria sedan, traveling through Georgia on her way to a family wedding. Two of her daughters, Mary and AnnaLeah, were in the back seat; her son Caleb was sitting next to her in the front.

“I came upon slow traffic. I slowed down and a truck driver — apparently — did not. He hit us,” she recalled. Karth’s Ford spun around, then slammed into the rear end of another semi truck and became wedged underneath it.

The truck’s rear guard, which Karth believes met the 1998 federal standard, “just came off onto the ground. It totally came off the truck.”

Photos taken at the crash site show debris scattered all over the roadway. To extricate Karth and her children, a rescue team equipped with hydraulic cutting tools hacked the car apart.

The collision killed 17-year-old AnnaLeah instantly; her sister, 13, survived for a few days in the hospital before dying of her injuries. Caleb sustained a minor concussion.

In the years since the crash, Karth and her husband, Jerry Karth, have channeled their grief into constant activism — petitioning NHTSA, helping to draft federal legislation, meeting with members of Congress, talking to anybody who will listen.

Marianne Karth has been working to improve truck safety standards, including by requiring stronger underride guards, after two of her daughters died in a collision with a truck in 2013. (FRONTLINE)

If the truck had been equipped with a stronger guard, said Karth, “it’s possible that my daughters would be alive.”

After witnessing the tests conducted by Brumbelow and the Insurance Institute, many of the country’s major trailer companies voluntarily began building better guards that are far more capable of withstanding a collision.

“We place such a high value on the safety of both our customers and the driving public that we have chosen to provide this improved level of safety and performance as a standard feature — and at no additional cost,” said Bob Wahlin, president and CEO of Stoughton Trailers, a large manufacturer, in a 2016 press release touting the company’s new guards.

In the view of Andy Young, an attorney and truck driver who has testified before Congress about underride collisions, “the industry made changes because they were worried about bad publicity. … They were embarrassed.”

NHTSA, however, did not spring into action. Instead, the agency allowed companies to continue building trailers with the weaker guards. In 2022, more than a decade after Brumbelow’s tests, NHTSA updated its rules. Even then, the agency acted only after the passage of a federal law directing it to do so.

Some safety advocates panned the revised regulation, noting that most big trailer companies are now building guards that are more robust than those required by the new government rule. They saw it as a step back.

“The record speaks for itself: There’s no way you can say that NHTSA acted swiftly to protect people from this known danger,” said Zach Cahalan, executive director of the Truck Safety Coalition, a network of crash survivors and victims’ families. “This is a story I can tell you over and over for different issues. You can’t tell me that people are laser focused on safety.”

While the government has made what Cahalan calls “incremental progress” on rear underride crashes, it has yet to craft regulations addressing collisions that occur when a passenger vehicle runs into the side of a large truck. Such accidents kill hundreds of people annually.

III. Side Guard Safety

Eric Hein sat on a bench on the grounds of a small Methodist church in the rugged Sandia Mountains north of Albuquerque, New Mexico. From time to time, a semi truck chugged up a steep four-lane road nearby, sending a low rumble through the canyon.

In his hands he held photos of his teenage son, Riley Hein, who was killed in a collision with a heavy truck in 2015. He wept softly. The years, Hein said, have scarcely dulled his sorrow.

Eric Hein’s son, Riley, died in a collision with a heavy truck on a New Mexico highway in 2015. (FRONTLINE)

Riley Hein was driving to high school when an 18-wheeler drifted into his lane. The teen’s Honda Civic smacked into the side of the massive vehicle and became wedged beneath it, trapped between the front and rear wheels.

Instead of stopping, the trucker pulled Riley Hein and his damaged Honda down the highway for half a mile. The car erupted in flames. By the time firefighters were finally able to extinguish the fire, it had been reduced to a husk of charred metal. Riley Hein — a smiley, gregarious teen who played trombone in the school marching band — was dead.

ProPublica and FRONTLINE reporters repeatedly tried to contact the driver, but were unable to locate him.

“We had to sell the house and leave after Riley was killed,” Eric Hein recalled. “It was just too quiet. And it was very painful driving down the highway and seeing the place where his car burned.”

Eric and his son, Riley (Courtesy of Eric Hein)

Riley Hein’s story points to another problem: Even when semi trucks are equipped with rear guards, there is nothing to keep a car from hitting the side of a truck and getting stuck beneath it. NHTSA has never adopted regulations requiring any type of underride guard on the sides of trucks.

During the late 1960s, the Department of Transportation said publicly that it intended to “extend the requirements for underride protection to the sides of large vehicles.” But department officials quietly dropped the idea. In 1991, NHTSA revisited the concept and determined that it would be too costly.

Over the past several decades, engineers have developed a host of devices that can be mounted to the underbelly of a semitrailer to prevent underride crashes like the one that took Riley Hein’s life. Most are built from a lattice of thick steel tubes. Wabash National, a major trailer builder based in Indiana, has patented several designs.

But the technology has largely been shunned by the trucking industry. Wabash has never put its side guards into production. (Many semitrailers are equipped with lightweight panels that hang between the front and rear wheels; these are not side guards. These devices are meant to improve fuel-efficiency but don’t provide any safety benefits — they’ll collapse during a crash.)

Hein was shocked when learned about this history. The semitrailer that smashed into his son’s Civic was built by Utility Trailer Manufacturing Company, one of the biggest players in the U.S. market. Eric Hein decided to sue the company, alleging they’d been “negligent for not putting on side underride guards on the trailer that killed Riley.”

It was a relatively novel strategy, and his attorney Randi McGinn, was initially skeptical, pointing out that there had been few successful legal cases built on the theory.

But as McGinn and her co-counsel, Michael Sievers, dug into the evidence, they became increasingly convinced that Hein’s instinct had been right. During discovery they obtained a seven-page document signed by executives from Utility and 10 other semitrailer companies. The document, drafted in 2004, was a pact struck by the biggest companies in the business, a pledge to work cooperatively — and secretly — to thwart any lawsuits stemming from side and rear underride crashes. The arrangement had been orchestrated by Glen Darbyshire, an attorney for the TTMA, the trade group.

As part of the agreement, the firms would keep crucial safety information confidential. That material — including “documents, factual material, mental impressions, interview reports, expert reports, and other information” — wasn’t to be shared with anyone outside of the circle.

Darbyshire declined to be interviewed by ProPublica and FRONTLINE, as did the TTMA.

To McGinn, it seemed the companies had spent years battling lawsuits rather than directing their engineers to address an obvious hazard. “This is the same thing that the tobacco companies did — rather than fix the problem, or admit the problem,” said McGinn. “Corporations have to be responsible for safety, too. They can’t put their profits before the lives of 16-year-old kids.”

In the course of the litigation, Jeff Bennett, Utility’s vice president for engineering, said he’d spent 32 years with the company and had never heard of a car getting trapped under a trailer, other than in the Hein case. The company, he testified, had never designed or built a side guard.

Utility executives argued that adding side guards to trailers would unleash a cascade of new problems: They could cause trailers to get hung up on steep loading ramps, interfere with the functioning of brake lines, and fatigue the frame of the trailer.

After a two-week trial in 2019, jurors in Albuquerque found Utility negligent, ordering the company to pay nearly $19 million to the Hein family. It was one of the largest verdicts to hit the trucking industry in recent years.

Utility did not respond to emails from FRONTLINE and ProPublica requesting comment.

In a statement issued after the trial, the company said, “Utility Trailer does not believe it negligently designed, tested, or manufactured its trailers. Utility Trailer presented uncontroverted evidence that adding a side-underride guard to its trailers would make the trailers more dangerous to the motoring public.”

Since then, however, the company’s stance has shifted dramatically. Utility now sells what it calls a “side impact guard,” offering it as an additional safety feature on its trailers. In its sales brochure, Utility says the guard has been mounted to “over 20 trailers” currently on the road.

In recent years, Sens. Kirsten Gillibrand, D-N.Y., and Marco Rubio, R-Fla., have repeatedly pushed legislation that would require semis and other heavy trucks to have some sort of side guard. Introduced three times since 2017, the bill has not made it out of committee.

While the senators haven’t been successful with the legislation, they managed to insert language instructing NHTSA to study side guards into the infrastructure bill signed by President Joe Biden in November 2021.

“You know, people don’t like change. And certainly, you know, the trucking companies don’t want to have to invest more money necessarily on safety,” Gillibrand said, when asked about the criticism. “But this is something that is necessary.”

Rubio declined to be interviewed by FRONTLINE and ProPublica.

The industry remains strongly opposed to side guards. In one letter to Congress, the ATA said there wasn’t “sufficient science” on side guards and urged the government to conduct more research on the devices before mandating them.

“When we talk about installing side underride guards, we’re focusing on mitigation after that crash has already happened,” said Horvath, the ATA’s top safety official. “Unfortunately, resources are not limitless. And if I’m going to direct resources as a trucking company, I want to focus on avoiding that crash from ever occurring.” Big trucking companies are supportive of new electronic technologies such as automatic emergency braking systems, which use cameras or sensors to detect road hazards and halt the truck before it crashes, or engine modules that limit the speed of a truck, he said.

Lewie Pugh, a retired trucker, is executive vice president of the Owner-Operator Independent Drivers Association, a group representing individual drivers and small trucking firms. “Speaking as somebody who has real-world experience driving a truck, I believe there are probably certain instances, certain situations where side und­­erride guards will work and save lives,” Pugh said. “I also believe that there are certain instances where side underride guards will cost lives, and we don’t know the unintended consequences.”

If you ask Pugh, he’ll tell you that truckers have every right to be skeptical of both the government and new technologies. In 1975, NHTSA adopted a regulation requiring anti-lock brakes on large trucks and trailers. The new braking systems, however, proved to be glitchy and prone to failure, leaving truckers rolling down the road without any way to stop.

He worries that if side guards are mandated, the costs will hit independent truckers and small operators hard.

“Research is key, and don’t use the truck drivers and the trucking companies as the guinea pigs,” Pugh said. “Let’s make sure this stuff is working.”

IV. Counting Crashes

NHTSA operates on a $1.3 billion annual budget. The agency is responsible for everything from setting standards for motorcycle helmets to investigating defective vehicles to studying automated driving technologies. It is America’s primary roadway safety agency.

And yet NHTSA is unable to count the number of underride crashes that occur in the U.S. each year.

An analysis of the agency’s data by ProPublica and FRONTLINE indicates that more than 400 people, including several truckers, died in underride collisions in 2021, the most recent year for which complete figures are available.

But the true death toll is likely far higher. Pointing to a series of studies dating back to the 1970s, experts say NHTSA has never been able to properly track underride crashes, despite spending hundreds of millions of dollars on data-collection efforts.

“There is a severe undercounting of the number of underride crashes in this country,” said Harry Adler, a co-founder of the Institute for Safer Trucking, an activist group that follows the data closely.

Part of the problem is that NHTSA relies on local and state law enforcement officers to investigate serious collisions and document their findings. Those police reports are sent to NHTSA and compiled into a single, mammoth database, cataloging tens of thousands of incidents every year.

The agency, however, has never required these first responders to track underride crashes and has offered police little training on the issue. As Adler notes, “only 17 states have a field on their police accident reports to indicate if an underride occurred.”

Underride “fatalities are likely underreported,” stated the Government Accountability Office in a 2019 report urging NHTSA to do a better job of educating police officers and other law enforcement personnel about the crashes.

NHTSA’s own data can be conflicting. ProPublica and FRONTLINE compared two agency databases. One contained detailed information, including photos and crash diagrams, on 27 fatal side and rear underride truck collisions. In the other one — the primary data set of fatal crashes — only three of those 27 accidents were listed as underrides.

Recently, the agency acknowledged that its numbers on underride crashes are unreliable. NHTSA said it has recently taken steps to improve its data-collection practices.

The issue is not academic. When NHTSA looks at a new safety rule, it makes strict economic calculations. How many lives will be saved by the regulation? How much will it cost businesses to implement the rule?

NHTSA generally won’t adopt a new safety measure unless it can be shown to work and to cost the industry no more than $12.5 million for each life it saves.

Critics said the undercount of fatalities played an important role this spring, when NHTSA released new research on the costs and benefits of side guards.

The agency determined the devices aren’t economically feasible — they would be too expensive and save too few lives. According to NHTSA’s calculations, mounting the devices on every new semitrailer in the U.S. would cost upwards of $778 million and would only prevent 17.2 deaths per year.

Some experts, though, are skeptical of NHTSA’s calculations. They said that NHTSA made faulty assumptions about the efficacy of side guards and the number of lives at risk. The National Transportation Safety Board, an independent federal agency, has said publicly that NHTSA’s analysis underestimated the potential benefits of the guards.

Brumbelow’s organization concluded that a more realistic estimate of the lives that side guards would save each year is 159 to 217, far higher than what NHTSA found.

The higher number flips the cost-benefit equation in favor of requiring trucks to have side guards.

“There are hundreds of lives that are being lost every year in side underride crashes,” he said. “The system that would be needed on a trailer to prevent so many of those fatalities from occurring is not overly complex.”

NHTSA, he concluded, needs to take the matter “more seriously.”

V. “Complete Success”

Against one wall in a crowded workshop in Cary, North Carolina, are an array of tool chests and welding equipment. Hunks of steel and extruded aluminum — truck parts — lie on a tall workbench. A shelving unit holds several child car seats.

In the center of the space, Aaron Kiefer is sorting through a pile of manilla folders. He is a mechanical engineer and accident reconstructionist. Clients — insurance firms, attorneys and, quite often, trucking companies — hire him to figure out what transpired in the moments before a serious crash.

Aaron Kiefer shows reporter A.C. Thompson one component of a steel guard that mounts to the bottom of a semitrailer. (FRONTLINE)

Kiefer has plenty of work. In recent years America’s streets and highways have become more perilous, with fatal collisions of all types increasing significantly; Buttigieg, the transportation secretary, recently declared it a “national crisis.” Deaths due to truck crashes have surged by nearly 50% over the past decade, to 5,788 in 2021; nearly 155,000 people were injured that year.

Kiefer’s case files are the stuff of nightmares. One particularly gruesome investigation involved a car that had been cut in half by an encounter with a semi truck. Looking at photos from the crash, which occurred in Alabama, he said, the auto “passed all the way underneath the trailer.” He added, flatly, “It was not a survivable crash.”

Kiefer said he’s investigated “at least 100” underride collisions. “Seeing these types of accidents, over and over, has become increasingly a frustration of mine, personally,” he explained. “When you have this mismatch between the commercial vehicle and the passenger vehicle, the passenger vehicle always suffers. And I feel like there are reasonable ways to prevent these types of accidents.”

In hopes of reducing this roadway violence, even a little, Kiefer has designed a side guard using superstrong polyester webbing — the same material is used to lift extremely heavy cargo — attached to a matrix of steel bars. The goal is to get the trucking industry to adopt the device, which weighs 400 pounds, far less than other side guards; the lighter weight should translate into better fuel efficiency and other benefits for truckers.

On a warm day last fall, Kiefer staged a test of the device, dubbed a Safety Skirt, on a huge square of asphalt at the North Carolina State Highway Patrol training center in Raleigh. It was a grassroots effort. Welders at Maverick Metalworks, a local business, had helped Kiefer fabricate the guard. A salvage yard had donated a sacrificial Nissan Altima, which was delivered by volunteer from a nearby towing company.

Kiefer brought an old, battered semitrailer equipped with his guard to the facility, which under normal circumstances is used by police practicing high-speed driving techniques. He was planning a T-bone-type crash: The Nissan would strike the side of a trailer at a 90-degree angle. Marianne and Jerry Karth were on hand to witness the event, as was Lois Durso, an activist who had driven up from Florida with her husband.

With police officers and local reporters watching, the car was towed toward the trailer at 35 mph, smacked into the guard with loud thud and bounced off. The blow crunched the hood of the Nissan and set off the airbags, but no underride had occurred. It worked. “Yes! Yes! Yes!” shouted Marianne Karth.

“Complete success,” Kiefer said, smiling. “This is awesome. It’s a step towards highway safety.”

Now he just has to get NHTSA and the trucking companies to agree.

A crash test dummy in a Nissan Altima remains intact after a T-bone-type collision with a trailer equipped with prototype side guards. (FRONTLINE)

How We Conducted Our Analysis

To analyze the faulty reporting of underride collisions, ProPublica and FRONTLINE examined two databases maintained by the National Highway Traffic Safety Administration, the country’s top road safety authority.

First, we examined the agency’s Crash Investigation Sampling System. This database contains a representative sample of accidents from across the country. For each incident, NHTSA analysts create a thorough report, which includes photos and crash diagrams.From this data set, we identified 27 cases that documented fatal rear and side underride crashes from 2017 to 2021.

We then took those 27 cases and matched them to the same 27 accidents as they were recorded in NHTSA’s primary fatality database, called the Fatal Accident Reporting System. The FARS database is designed to record all road accidents involving fatalities. It has long been criticized as being inaccurate, even though it is frequently used in setting safety policies at the agency.

Our findings demonstrated the inaccuracy of FARS. In comparing the two data sets, we found that only three of the 27 accidents in FARS were correctly identified as underride crashes.

Do You Work for the Federal Government? ProPublica Wants to Hear From You.

Reporting contributed by Jeff Ernsthausen of ProPublica and Gabrielle Schonder and Chantelle Lee of FRONTLINE. Design and development by Lucas Waldron of ProPublica.

by Tim Golden

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When the PGA Tour announced a long-term partnership with LIV Golf, the upstart organization bankrolled by Saudi Arabia’s sovereign wealth fund, no one sounded angrier than survivors of the 9/11 attacks and the families of those who were killed.

The pact on June 6 marked an abrupt reversal for the PGA, which had fought LIV Golf since it emerged in 2021. The rival league courted star golfers with vast payouts that were widely seen as part of a global public-relations campaign by the Saudi government.

“All of these PGA players and PGA executives who were talking tough about Saudi Arabia have done a complete 180,” one spokesperson for the families, Brett Eagleson, said in an interview. “All of a sudden they’re business partners? It’s unconscionable.”

Before the new alliance, PGA officials had highlighted the Saudi government’s alleged role in the 9/11 attacks, along with the kingdom’s record of human rights abuses, as important reasons for their opposition to LIV Golf.

The Saudi government has long denied that it provided any support for the attacks. But, over the past few years, evidence has emerged that Saudi officials may have had more significant dealings with some of the plotters than U.S. investigations had previously shown.

Since 2017, the 9/11 families and some insurance companies have been suing the Saudi government in a Manhattan federal court, claiming that Saudi officials helped some of those involved in the Qaida plot.

The Saudi royal family was a declared enemy of al-Qaida. In the early 1990s, it expelled Osama bin Laden, the son of a construction magnate, and stripped him of his citizenship. At the same time, the kingdom funded an ambitious effort to propagate its radical Wahhabi brand of Islam around the world and tolerated a religious bureaucracy that was layered with clerics sympathetic to al-Qaida and other militant Islamists.

From the start of the FBI’s investigation into a possible support network for the 9/11 plot, one of its primary suspects was a supposed Saudi graduate student who helped settle the first two hijackers to arrive in the United States after they flew into Los Angeles in January 2000.

The middle-aged student, Omar al-Bayoumi, told U.S. investigators that he met the operatives by chance at a halal cafe near the Saudi Consulate in Culver City, California. The two men, Nawaf al-Hazmi and Khalid al-Mihdhar, were trained as terrorists but spoke virtually no English and were poorly prepared to operate on their own in Southern California.

Bayoumi insisted he was just being hospitable when he found Hazmi and Mihdhar an apartment in San Diego, set them up with a bank account and introduced them to a coterie of Muslim men who helped them for months with other tasks — from buying a car and taking English classes to their repeated but unsuccessful attempts to learn to fly.

As ProPublica and The New York Times Magazine detailed in an in-depth report on the FBI’s secret investigation of the Saudi connection in 2020, agents on the case suspected that Bayoumi might be a spy. He seemed to spend most of his time hanging around San Diego mosques, donating money to various causes and obtrusively filming worshippers with a video camera.

Yet both the FBI and the bipartisan 9/11 Commission accepted Bayoumi’s account almost at face value. In a carefully worded joint report in 2005, the CIA and FBI asserted that they had found no information to indicate that Bayoumi was a knowing accomplice of the hijackers or that he was a Saudi government “intelligence officer.”

But FBI documents that were just made public last year sharply revised that assessment.

While living in San Diego, one FBI document concludes, Bayoumi was paid a regular stipend as a “cooptee,” or part-time agent, of the General Intelligence Presidency, the Saudi intelligence service. The report adds that his information was forwarded to the powerful Saudi ambassador in Washington, D.C., Prince Bandar bin Sultan, a close friend to both presidents Bush and their family. The Saudi Embassy in Washington did not immediately respond to questions about Bandar’s alleged relationship with Bayoumi.

As Bayoumi was helping the hijackers, FBI documents show, he was also in close contact with members of a Saudi religious network that operated across the United States. He also dealt extensively with Anwar al-Awlaki, a Yemeni American cleric who the documents suggest was more closely involved with the hijackers than was previously known. Awlaki later became a leader of al-Qaida in the Arabian Peninsula and was killed in a 2011 drone strike ordered by President Barack Obama.

One of the Saudi officials with whom Bayoumi appeared to work, Musaed al-Jarrah, was both a key figure in the Saudi religious apparatus in Washington and a senior intelligence officer. After being expelled from the United States, Jarrah returned to Riyadh and worked for years as an aide to Prince Bandar on the Saudi national security council.

Another Saudi cleric with whom Bayoumi worked, Fahad al-Thumairy, was posted to Los Angeles as both a diplomat at the Saudi Consulate and a senior imam at the nearby King Fahad Mosque — a pillar of the global effort to spread Wahhabi Islam that had opened in mid-1998.

According to another newly declassified FBI document from 2017, an unnamed source told investigators that Thumairy received a phone call shortly before the two hijackers arrived in Los Angeles from “an individual in Malaysia” who wanted to alert him to the imminent arrival of “two brothers … who needed their assistance.”

In mid-December 1999, according to the 9/11 Commission report, a key Saudi operative in the plot, Walid bin Attash, flew to Malaysia to meet with Hazmi and Mihdhar. Although the men were kept under surveillance by Malaysian security agents, they were allowed to fly on to Bangkok and then Los Angeles, using Saudi passports with their real names. The FBI source said that Thumairy arranged for Mihdhar and Hazmi to be picked up at the Los Angeles International Airport and brought to the King Fahad Mosque, where they met with him. Thumairy and Jarrah have both denied helping the hijackers.

The FBI revelations were especially stinging for the 9/11 families because previous administrations made extraordinary efforts to keep them under wraps. President Donald Trump, who promised to help the families gain access to FBI and CIA documents, instead fought to shield them as state secrets. (Trump has been a vocal supporter of LIV Golf, hosting several of its tournaments at his golf courses and saying after the merger, “The Saudis have been fantastic for golf.”)

The more recent disclosures — which came in documents declassified under an executive order that President Joe Biden issued just before the 20th anniversary of the attacks — are now at the center of the federal litigation in New York. While the families are pressing to reopen discovery in the case based on the new FBI information about Bayoumi and others, lawyers for the Saudi government continue to insist there is no evidence of the kingdom’s involvement in the plot.

To prove their case, the families must show that people working for the Saudi government either aided people they knew were planning a terrorist action in the United States or helped members of a designated terrorist organization like al-Qaida. At the time that Bayoumi aided Hazmi and Mihdhar in California, officials have said, the CIA and Saudi intelligence had identified the two as Qaida operatives.

The two federal judges overseeing the Manhattan litigation have yet to rule on requests from the families, based on the newly declassified FBI documents, for further inquiries to the Saudi intelligence service.

The PGA official who brokered the new alliance with LIV Golf, James J. Dunne III, told the Golf Channel he was confident that the Saudi officials with whom he negotiated were not involved in the 9/11 plot. Dunne, an investment banker, added, “And if someone can find someone that unequivocally was involved with it, I’ll kill him myself.”

Eagleson, whose father, John Bruce Eagleson, died in the same south tower of the World Trade Center where 66 employees of Dunne’s bank were killed, suggested that he read the declassified FBI documents about Bayoumi, Thumairy and other Saudis. “It’s the same government,” Eagleson said.