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by Audrey Dutton

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One night in March 1976, a young advocate for people with mental illness arrived at the Idaho statehouse with a warning.

Marilyn Sword urged lawmakers not to ratify a system that would ultimately lock away some of Idaho’s most debilitated psychiatric patients in the tiny, concrete cells of a maximum security prison — a kind of solitary confinement with no trial, no conviction and often no charges.

Idaho didn’t have any psychiatric hospitals secure enough for patients whose break with reality made them lash out in fear, anger or confusion. What it did have was a maximum security prison.

Sword said putting prison officials in charge, as lawmakers were contemplating, could violate the civil rights of patients committed by the court for hospitalization. She said it would burden them with “the double stigma of being mentally ill and then being placed in a maximum security unit at the penitentiary,” minutes of the meeting show.

Idaho leaders plunged forward with the legislation anyway.

In the five decades since, Idaho has continued to ignore warnings over and over that its law fails mental health patients by sending them to a cell block, ProPublica found in a review of legislative records and news clips.

“I think it’s really tragic that it has been this many years, and we’re still at this point,” Sword, now 77, said in an interview this summer.

Marilyn Sword was among the first mental health advocates to warn Idaho lawmakers in the 1970s that Idaho’s plan to house “dangerously mentally ill” patients in prison may violate their civil rights. Sword testified in 1976 as president of the Idaho Mental Health Association. (Sarah A. Miller for ProPublica)

Governors, lawmakers and state officials have been put on notice at least 14 times since 1954 that Idaho needs a secure mental health unit that is not in a prison.

They also have been told publicly at least eight times since 1974 that Idaho may be violating people’s civil rights by locking them away without a conviction, and that the state could be sued for it.

The most recent warning came this year, when Idaho’s corrections and health and welfare directors wrote that the practice was a problem “not only because of our lack of appropriate levels of care for this population but because the treatment violates the patients’ civil rights.”

Idaho will soon be the last state to legally sanction the practice of imprisoning patients who are “dangerously mentally ill,” to use Idaho’s parlance, but who are not criminals. New Hampshire is phasing it out.

State leaders repeatedly have defended Idaho’s approach — in 1977, 2007 and 2017 — as a temporary measure while the state worked on a stand-alone clinical unit or a permanent secure wing in a hospital. Those facilities never materialized.

At the start of this year, the Legislature refused to use any of Idaho’s $1.4 billion surplus to build a $24 million mental health facility for patients, opting to continue holding them without charges at the state’s maximum security prison south of Boise.

In placing patients who have not been charged with crimes in prison instead of in a treatment facility, Idaho is at odds with the U.S. Substance Abuse and Mental Health Services Administration. Holding prisoners with mental illness in prolonged seclusion also goes against recommendations of the American Psychiatric Association, the American College of Correctional Physicians, federal courts and the United Nations.

ProPublica and Mississippi Today have reported on a related issue recently: how Mississippi keeps hundreds of people with mental illness in county jails as they await appropriate hospital beds.

Idaho’s practice touches far fewer people and typically addresses more extreme behaviors. But it also stands apart because the Idaho patients are locked up longer — an average of 110 to 160 days in recent years — and in solitary confinement, in a maximum security facility, under a program fully endorsed in Idaho statute.

C Block holds the acute behavioral health unit of the Idaho Maximum Security Institution. The prison block is divided into three sections, one of which has nine cells for men considered “dangerously mentally ill.” They include patients who haven’t been charged or convicted of a crime. (Sarah A. Miller for ProPublica)

Joe Stegner, a former Republican leader, helped bring Idaho closer than ever toward building a hospital to replace the cell block in 2007 and 2008. Yet the project he championed was no match for Idaho’s inertia and austerity.

The defeat helped seal his retirement from politics.

“I started thinking, ‘You know, if you can’t have some wins in the Legislature, why are you kicking yourself around?’” Stegner, who served as a senator, said in an interview this summer.

“I set out to make a difference,” he said.

“The Damned and the Forgotten”

Two men sat in the Idaho Maximum Security Institution’s C Block near Boise on a recent day, neither of them convicted or charged in a crime.

The cell block was silent. An occasional face peered through a cell-door window the size of a computer keyboard. Inside each cell, another tiny window offered a view of razor wire, floodlights and rocks on the prison grounds.

First image: Patients admitted to the Idaho Security Medical Program spend months, on average, in cells like this one in a state prison near Boise. Second image: A view of the prison yard and desert surroundings from a cell in C Block. (Sarah A. Miller for ProPublica)

About a half-dozen civilly committed psychiatric patients a year are housed here and at a women’s prison in eastern Idaho under the Idaho Security Medical Program, state data shows.

The men share a block of nine cells with patients facing criminal charges and needing treatment before they can stand trial. Occasionally, a convicted felon with mental illness joins the mix. The women’s prison has one isolated cell.

Patients who end up here have conditions that can trick them into believing strangers are aliens who must be destroyed, or that the phlebotomist drawing their blood is implanting something in their arm, or that a nurse intends to infect them with a lethal virus. They react with violence.

A part-time psychiatrist, a part-time nurse practitioner and a dozen full-time staff members are expected to bring the patients back from shattered realities.

Certified nursing assistant Emma Wilson makes rounds inside the Idaho Security Medical Program’s section of C Block. (Sarah A. Miller for ProPublica. Patient document blurred by ProPublica.)

Civilly committed patients with the most severe symptoms spend as much as 23 to 24 hours a day confined to cells the size of a parking space.

Confinement can become necessary because it takes time to find effective medications that stabilize a patient before cognitive and behavioral therapies can begin, corrections spokesperson Jeff Ray said in an email. Until then, he said, “it is in the patient’s best interest they be kept safely in their cell, so they do not hurt themselves or others.”

Every patient gets checked on at least twice an hour, according to the corrections department. They can leave to shower, handcuffed, shackled and accompanied by guards.

Patients who take their medications, follow the rules and remain calm are allowed to spend time in the common area. There, they can watch television, use a microwave or sit in caged-in phone booths to make calls and send email on a terminal designed for prisoners. There are metal “restraint desks,” designed for shackling a person ’s ankles, bolted to the floor.

“There’s no color. There’s no nice pictures. There’s no couches,” said Kasey Abercrombie, a statewide coordinator for the Idaho Department of Health and Welfare, whose job includes regular in-person visits to these patients at the prison.

“It is prison,” Abercrombie told a roomful of attorneys and judges at a July Idaho State Bar meeting. “And when you think about this population in that setting, it is probably dawning on you how wild this is.”

The men spend hours peeling paint from the walls of their cells, a habit so universal that prison workers debate whether it makes sense to repaint between patients.

First image: Members of the prison staff try to keep patients occupied with worksheets, word searches, sudoku puzzles, radios and, in some cases, activities outside their cells. But the men often spend time in isolation peeling paint off the walls. Second image: A phone for the men in this section of C Block is inside a metal cage. (Sarah A. Miller for ProPublica)

“We try to do what we can with what we’re given,” said Mallory Logan, a prison social worker who works with civilly committed patients. But she said her unit can’t match the resources of a true forensic hospital.

Prison employees keep an imaginary barrier between convicted inmates who are in C Block for mental health care and the other patients with no convictions or charges.

There’s a “C” taped to the door of “civil” patients, a reminder that the person inside is not there as punishment. Signs around C Block remind staff members not to let the “civils” commingle with the inmates when they’re out of their cells.

Signs throughout C Block remind staff members not to let the “civils” commingle with criminally convicted inmates when they’re out of their cells. (Sarah A. Miller for ProPublica)

Little else separates patients. They are guarded, medicated and fed by the same prison employees. They have the same rules and reward systems that can allow them to have a radio or buy candy from the commissary.

Like many other states, Idaho can hospitalize people against their will under a court-ordered involuntary mental health commitment. At least two professionals must agree that such patients are likely to injure themselves or others or are “gravely disabled” due to mental illness.

If patients lash out — maybe punching or threatening to kill hospital workers — Idaho’s law says the state can ask the court to declare them “dangerously mentally ill” so they can be moved to a maximum security facility.

The typical patient isn’t a character who “really tugs on your heartstrings,” says Walter Campbell, chief psychologist for the Idaho Department of Correction.

“These are the damned and the forgotten,” he says.

Idaho is one of two states known to put people with mental illness in a prison without a criminal charge. The other, New Hampshire, just broke ground on a 24-bed secure mental health facility that will allow the state to end the practice — but not before a patient died last spring.

Psychiatrists and legal scholars commissioned by SAMHSA, the federal government’s main mental health agency, say it shouldn’t happen, period. In a 2019 report prepared for the agency that describes “principles for law and practice” in treating mental illness, the authors wrote, “Unless already incarcerated for a criminal offense, or facing criminal charges … no person who has been committed should be placed in a correctional facility for treatment services.”

One former patient’s mother provided ProPublica with copies of her son’s medical records and documentation of 15 uses of force on him during his stays in the Idaho Security Medical Program while under civil commitment. ProPublica is not naming the 38-year-old man to protect his privacy.

The records show that he was alone in his cell for days on end, aside from showers and short check-ins from staff. He didn’t always take his medications as required under his court-ordered commitment, so officers were called to hold him down for the drugs to be injected. Once, they fired pepper spray through a hatch in the cell door before entering.

His mother said she believes his confinement in a prison cell made it harder for him to recover. It was months before he was released last June to a state psychiatric hospital, where he remains.

The number of times force was used on the patient is unusually high, according to Ray, the prisons spokesperson.

“This is an extreme case which is not representative of the typical patient’s experience,” Ray said, adding that the use of pepper spray “is rare but on some occasions necessary.”

While acknowledging that prison is not the most therapeutic environment for people with severe mental illness, Ray described corrections officers assigned to the unit as “carefully selected, specially trained, and expected to consistently meet high performance standards.”

“They are some of the best correctional professionals in our department,” he said.

The prison psychiatrist who treated this patient wrote, in another medical record, that he told Idaho health and corrections leadership that prison was an inappropriate setting for this patient, who had been placed under involuntary civil commitment and had a history of injuring staff members at hospitals. Idaho’s health and corrections directors later asked legislators to fund a new secure mental health facility. (Obtained by ProPublica)

According to psychiatrists and researchers, forced solitude can exacerbate conditions for people with profound mental illness, making them lash out more.

“Solitary confinement is recognized as difficult to withstand; indeed, psychological stressors such as isolation can be as clinically distressing as physical torture,” Jeffrey L. Metzner and Jamie Fellner wrote in 2010 in The Journal of the American Academy of Psychiatry and the Law.

It is “the mental equivalent of putting an asthmatic in a place with little air,” according to a ruling by the 9th U.S. Circuit Court of Appeals, which covers Idaho.

Legal experts said Idaho is on shaky legal footing with its practice.

When told about Idaho’s system by ProPublica, David Fathi, director of the American Civil Liberties Union National Prison Project, called it “shocking beyond belief” and a likely violation of patients’ constitutional rights.

“I think the state has considerable exposure here,” Fathi said, “and I would urge them to discontinue this practice before they get sued over it.”

Megan Schuller, legal director for the Judge David L. Bazelon Center for Mental Health Law, said Idaho may also be violating the Americans with Disabilities Act and should invest in community-based care that keeps people from needing a secure facility.

“The bottom line is, you’re imprisoning people for having a mental health condition — for the manifestations of that condition,” Schuller said. “And that is just absolutely not equal treatment to how we treat any other type of health condition or even mental disability.”

Decades of Warnings

The idea of locking Idahoans with mental illness in a penitentiary was around as far back as 1954, when the Idaho Statesman reported that a county prosecutor had pressed for a place to incarcerate the “criminally insane.” At the same meeting where the prosecutor spoke, an influential Republican suggested putting the ward in the state prison. But Idaho’s health director argued a prison ward wasn’t appropriate; people with illnesses belonged in a hospital.

In the 1970s, a new generation of Idaho health and law enforcement officials offered an alternative. They would jointly operate a secure mental health facility, on the grounds of the new Idaho state corrections complex that was going up south of Boise.

The state health agency would provide psychiatric care, furniture, medical equipment and first aid; the state corrections agency would take care of security and room and board. The unit would house up to 17 patients including “persons considered mentally ill and dangerous” but who committed no crime.

Health and corrections leaders called it “a historical first” and “a new era” for Idaho. The Legislature approved, and the joint unit was open by 1972.

The collaboration quickly unraveled. In 1976, citing “numerous problems with management and operation,” the state prisons director pushed legislation that would give him full control over the unit.

Corrections officials were poised to start running the show, and critics were stunned.

Sword and other mental health advocates quoted in legislative records that year urged the state to keep a separation between civil patients and prisoners.

Marilyn Dorman, a regional behavioral health board chair, argued that mental health care decisions should not be made by corrections officials but by someone “who has the training in mental health and mental hygiene needed to best represent the patients.”

A supervisor at the psychiatric unit, Jeffrey Toothaker, was so outraged that he spoke out publicly against his boss, Idaho health director Milton Klein. In a letter to the editor of the Idaho Statesman, Toothaker said he found it “difficult to work with a good conscience for a department that has at its head a director that supports such a bill.”

Klein acknowledged to lawmakers that the arrangement wasn’t ideal. Without money to build a new secure psychiatric facility, he said, placing patients in the state pen was the best compromise available.

And that approach was designed to be temporary, authorized for only one year. In 1977, legislative minutes show, lawmakers said a secure unit for civilly committed patients would open in 1978 at Idaho’s State Hospital South, replacing the prison ward.

One senator said that while the U.S. Supreme Court might not look kindly upon placing civilly committed patients in prison, it would probably give Idaho a pass if a better solution was in the works.

It’s unclear what happened to construction at the hospital. But in 1979, a year after the ward was supposed to have opened, the Legislature made the civil commitment unit at the state penitentiary permanent.

It’s drawn criticism ever since.

The prison unit where civilly committed patients are housed has the trappings of a place designed for incarceration, such as these metal “restraint desks.” (Sarah A. Miller for ProPublica)

A national mental health advocate in 1990 called the unit a “dumping ground” for those with severe mental illness. "Death Row is just down the hall,” said psychiatrist and mental health advocate E. Fuller Torrey, according to an Idaho Statesman article. “Their major crime is schizophrenia.”

The same year, a complaint from a disability rights organization drew a U.S. Department of Health and Human Services civil rights investigation, according to an Idaho Statesman report. The federal agency could find no documentation of the outcome when asked recently by ProPublica.

The state’s behavioral health administrator told lawmakers in 2006 that “Idaho desperately needs a secure psychiatric facility or facilities for these people” instead of prison.

None of the criticism seemed to make an impression. Only once since 1976 have Idaho’s political leaders been united in their desire to give patients the right treatment in the right place.

Stegner, the state senator, was among those leading the charge.

The Hospital Takes Shape

Stegner ran his family’s grain-elevator business in north-central Idaho before jumping into politics. He ascended the Republican ranks to become the Senate assistant majority leader by the mid-2000s.

It struck Stegner as wrong when he learned Idaho was locking people with mental illness in prison without a conviction. In 2007, three decades after his predecessors assured people a new hospital wing for civilly committed patients was on its way, Stegner saw an opportunity to make it finally happen.

Sen. Joe Stegner, left, at the Capitol in Boise in 2005. Stegner has since retired from the Legislature. (Dianne Humble/Idaho Press Tribune via AP)

State mental health administrators who’d been making a renewed push to build a secure facility had fully scoped it out.

The building would house 300 beds for patients committed to the state as a result of their mental illness, as well as convicted criminals with severe mental illness and violent behaviors. The two groups would be kept in separate areas.

Stegner persuaded fellow lawmakers to set aside $3 million to design the facility. Construction was estimated at $70 million — roughly $101 million in today’s dollars.

Stegner still remembers driving out to the dusty sagebrush-covered land south of Boise to choose the site where the building would go: “a little low draw” behind a hill that would keep the prison out of view from the new psych unit.

State officials toured high-security psychiatric facilities in California, Kansas and Missouri.

Gov. Butch Otter put the project in his budget for the following year and highlighted it in his January 2008 State of the State address.

The House and Senate voted to allow bonds for the project, noting the demonstrated need for a standalone treatment facility.

Several legislators signed a resolution saying people placed in civil commitment and not serving a criminal sentence “should not be housed in correctional facilities.”

Stegner could see a future where Idahoans whose psychiatric diseases made them lash out would have a place to be safely treated. There was political support for it. There was money. There was even an architectural rendering.

And then nothing.

The governor’s office dropped its support, Stegner said.

Otter told ProPublica the plan stalled because of bureaucratic disputes over where to build the facility and, later, because of the 2008 financial crisis. “We all agreed we needed it,” he said of the new mental health facility, but there wasn’t enough money to go around. “And we all agreed we didn’t want to raise taxes,” he said.

Stegner believes one factor made it easier to kill the project. A year before, acting on a proposal from the Otter administration, legislators had tweaked wording in Idaho’s law governing the mental health unit to put corrections officials on firmer ground in the event of a lawsuit. It may have lessened the urgency to build a hospital.

“That was really a crushing defeat for me — one that changed my attitude about remaining in the Legislature, and one that is one of my biggest regrets in my legislative career,” Stegner told ProPublica.

Idaho officials went on to back away from or block the development of a mental health facility two more times.

Most recently, legislators this year failed to take up Gov. Brad Little’s proposal to use a fraction of Idaho’s record-breaking budget surplus to build a 26-bed facility on state land near the state prison.

One additional expense lawmakers did tack on to the budget: $750,000 to enable the execution of death row inmates by firing squad.

The Next Opening

Stegner and Sword, the activist who testified against imprisoning civilly committed patients in the 1970s, are looking to Little again in 2024. The governor made mental health care a focus of his administration when he took office in 2019. After getting nowhere on his proposal for a new secure facility this year, Little has signaled he plans to try again.

Based on a request from his administration, the state’s building advisory council gave its blessing Nov. 14 to a $25 million facility. That could bolster Little’s chances of legislative approval. Little’s press secretary told ProPublica the governor sees the building as “a critical part of our state’s behavioral health infrastructure.”

The Department of Health and Welfare would provide the mental health care for patients there. The Department of Correction would provide security. They would operate the facility together, and patients would no longer be held in prison cells.

It would be, by and large, just as state lawmakers envisioned more than 50 years ago.

Correction

Dec. 13, 2023: This story originally misspelled the first name of a coordinator for the Idaho Department of Health and Welfare. She is Kasey Abercrombie, not Kacey.

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by Jonathan D. Salant, Pittsburgh Post-Gazette; Debbie Cenziper, ProPublica; and Michael D. Sallah, Pittsburgh Post-Gazette

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

Two prominent U.S. senators are calling for a government investigation into the Food and Drug Administration’s oversight of medical devices following revelations that the agency failed to protect the public from defective breathing machines capable of sending particles and fumes into the masks of patients.

Sens. Dick Durbin, D-Ill., and Richard Blumenthal, D-Conn., asked the Government Accountability Office — the investigative arm of Congress — to probe how the FDA tracks warnings about dangerous devices, oversees recalls and takes action against companies that put patients at risk.

Durbin chairs the Senate Judiciary Committee and Blumenthal, who also sits on the panel, heads an investigations subcommittee that reviews violations of laws and regulations impacting national health and safety.

The letter signed by the two lawmakers on Wednesday follows a yearlong investigation by ProPublica and the Pittsburgh Post-Gazette that detailed breakdowns by device maker Philips Respironics as well as the FDA in the years leading up to one of the largest and most disruptive recalls of its kind.

The news organizations found that the FDA had received hundreds of complaints about contamination inside Philips’ popular continuous positive airway pressure, or CPAP, machines and ventilators long before the June 2021 recall but took no action to alert doctors or patients. The complaints included at least 30 that described degradation of an industrial foam inside the machines that was found to break down and release potentially hazardous material.

“It now appears that FDA missed several opportunities to mitigate the harm done to the millions of patients who have used these recalled medical devices,” the senators wrote. “It is not clear whether or not FDA took action to inform hospitals, health care providers, and patients about the potential risks.”

The news organizations also found that Philips, with two sprawling factories outside Pittsburgh, held back thousands of additional foam complaints from the government, some dating back to 2010.

ProPublica and the Post-Gazette reported that Philips carried out multiple internal tests on the devices before the recall, including health hazard evaluations that found the foam could emit volatile organic compounds at dangerous levels.

“Even when Philips Respironics conducted an internal health hazard evaluation, which confirmed that inhaling the chemicals from the sound abatement foam could cause ‘permanent impairment,’ it did nothing, while patients suffered,” the senators wrote. “That is unacceptable.”

The senators asked the GAO to look at how the FDA ensures that medical device companies initiate recalls, what the agency does when manufacturers fail to comply and what resources or legislation would be needed to improve the agency’s oversight.

Durbin and Blumenthal said the inquiry would be a follow-up to a similar GAO study more than a decade ago that found the FDA often failed to review medical device recalls to determine if they protected the public.

“Given recent reporting and the dramatic increase in recalls since then, it is clear that GAO and Congress must examine FDA’s oversight of medical device recalls once again,” the senators wrote.

In the Philips case, the FDA said it acted as soon as it learned of the safety concerns in April 2021, just weeks before the recall.

The agency acknowledged that it received earlier reports from Philips, including complaints that detailed “general contamination issues,” but said the contamination could have been caused by external sources and not the problem foam. The FDA said it received 30 reports about the foam itself in the years before the recall but that those complaints did not indicate that any patients had been harmed.

Philips said it evaluated complaints about the foam on a case-by-case basis and launched the recall shortly after the company became aware of the potential significance of the problem. The company has also said that more recent testing shows that its machines are unlikely to cause “appreciable harm.”

Philips and its parent company “share the same objectives as the FDA,” the firm said.

In the aftermath of the news organizations’ first story in September, Blumenthal asked the Justice Department to take immediate enforcement action against Philips. He later expanded his call for aggressive enforcement in a letter to FDA Commissioner Robert M. Califf and Attorney General Merrick Garland.

Calling the findings by ProPublica and the Post-Gazette “explosive,” Blumenthal urged both leaders to “urgently use all of their authorities to protect current and future patients by investigating these allegations thoroughly, taking the strongest enforcement action possible, including criminal charges, if the allegations are substantiated.”

Michael Korsh of the Pittsburgh Post-Gazette contributed reporting.

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For decades, judges have relied on a select group to make sure the judiciary adheres to the highest ethical standards: themselves.

The Judicial Conference, a secretive, century-old council of federal judges led by the chief justice of the Supreme Court, oversees the ethics and financial disclosures for more than 1,700 federal judges, including the nine justices of the high court. Those financial disclosures, submitted yearly as a list of assets and gifts, are often the only window into whether judges with lifetime appointments have conflicts of interest as they rule on the country’s most consequential legal cases.

The judiciary's leaders argue that the conference has been an effective watchdog over America's third branch of government. The conference’s authority plays an important role in judicial controversies and has been at the center of some defenses of the court following ProPublica’s reporting on possible ethical breaches. With its “sound structure of self-governance,” Chief Justice John Roberts wrote in 2021, “the Judicial Conference has been an enduring success.”

In reality, the Judicial Conference has instead often protected, not policed, the judiciary, according to interviews and previously undisclosed internal documents. For decades, conference officials have repeatedly worked to preserve judges’ most coveted perks while thwarting congressional oversight and targeting “disloyal” figures in the judiciary who argued for reforms.

In the mid-1990s, two judges — a member of the Supreme Court and a judge on the conference — arranged to obscure a legal publisher’s role in underwriting meetings for an awards ceremony attended by judges at lavish resorts in locales like the Virgin Islands and Hawaii.

Years later, amid a Senate-ordered audit of judges’ travel records, one of the conference’s top officials in Washington told the chief justice that he had ordered his staff “to present the data in a way to mitigate the damage.” Congress did not ultimately pass any of the bills being floated around the time to restrict gifts and travel.

And when the judiciary clarified its rules on federal judges’ disclosures earlier this year, the final version was watered down, according to internal documents obtained by ProPublica. The goal behind some of the proposed edits, a staff attorney explained in an email to a subordinate, was to avoid “drawing bright lines.”

The conference, which sets procedures and rules for all federal courtrooms, coordinates an array of committees run by judges appointed by the chief justice. One of these, the Financial Disclosure Committee, is responsible for enforcing Watergate-era transparency laws and handling the rare allegation that a judge may have knowingly filed a false disclosure report.

Across the federal government, financial disclosures and potential conflicts of interest are self-reported. But experts say the judiciary has the least oversight of all three branches.

Members of the House and Senate face bipartisan ethics committees. Top officials at the White House and agencies like the Department of Defense need to have their disclosures cleared by an independent ethics office. Inspectors general can investigate and refer cases to the Department of Justice.

The enforcement capability of the judiciary’s Financial Disclosure Committee was tested in 2011, when Justice Clarence Thomas was accused of failing to disclose the source of his wife’s income, as well as potential free flights on real estate developer Harlan Crow’s private jet. The conference promised to look into it.

Instead, ProPublica found, two successive Financial Disclosure Committee chairs decided behind closed doors to end the inquiry at the outset and chose not to seek any evidence before the committee announced that it hadn’t seen any to support the allegations.

Even one of the Financial Disclosure Committee’s main functions — making sure judges’ self-reported income, assets and gifts comply with the law — is designed to help judges, not hold them accountable, according to nine federal judges and current and former staffers. Most of that daily work is farmed out to an obscure government agency known as the Administrative Office.

The Administrative Office, which answers to the Judicial Conference, had only about 12 full-time staffers in its financial disclosure division in 2022 and a rotating crew of temps. They review more than 4,000 disclosure reports each year. Instead of closely scrutinizing those disclosures, staff relies on the “honor system,” several of the people said.

Former officials at the Administrative Office say the unit is so mismanaged that a program assistant who orders office supplies and furniture has been tasked with helping review disclosures; staffers without law degrees have routinely given legal advice to judges; and some employees, including temps, have opted to simply fill out judges’ disclosures for them before signing off on those very same reports.

Wendy Smith, a former top attorney at the Administrative Office’s financial disclosure division, said the agency was structured to give the judiciary the appearance of complying with transparency laws, when it actually doesn’t. “They do not have a functioning financial disclosure and ethics program,” Smith said, “and I don’t believe they want one.”

In response to interview requests and a detailed list of questions, the agency said in a statement that it’s not a regulator and “the Judiciary has in place a robust and sound set of policies and procedures for facilitating compliance” with transparency laws, “designed to promote confidence in government.” The office declined to answer any of the specific questions “because many of them seem to be predicated on false or distorted premises.” The agency did not elaborate.

Roberts and Thomas did not respond to a list of ProPublica’s extensive questions.

Last month, the Supreme Court adopted its first-ever code of conduct but stopped short of defining an enforcement mechanism. That, coupled with the Judicial Conference’s record, has led some observers to assert that the new rules will ultimately change little.

That’s the way some judges like it.

“The vast majority of judges willingly comply with the rules,” Robert Loesche, who was the top lawyer at the Administrative Office for years, told ProPublica. “But there’s a minority of judges out there who push the envelope of judicial independence and don’t want their behavior monitored.”

“I’m Telling You: Nothing”

In 2011, lawmakers and advocacy groups filed a series of complaints against Thomas. The Heritage Foundation, a prominent conservative think tank, had paid his wife, Ginni Thomas, nearly $700,000 over multiple years.

Common Cause, a nonpartisan watchdog group, revealed that Thomas didn’t report that source of income on his financial disclosures, despite a legal requirement to do so. The New York Times also raised the possibility that Thomas may have flown on Crow’s jet at least three times. If Thomas had, in fact, taken those flights and Crow footed the bill, the justice failed to disclose that, too.

The conference told the lawmakers and Common Cause that the Financial Disclosure Committee would look into both issues.

Clarence and Ginni Thomas in 2010. Thomas had failed to disclose the source of Ginni’s income for years and later amended his reports. (Francisco Kjolseth/AP Photo)

Early in 2012, the committee held a meeting. Some of the judges in attendance expected a serious conversation about how to handle the matter. If there is “reasonable cause” to believe a judge might have intentionally falsified a disclosure or omitted information, the conference, through the Financial Disclosure Committee, is supposed to refer the case to the attorney general.

Instead, the committee’s chair, a Kentucky district judge and President Bill Clinton appointee named Joseph H. McKinley Jr., said immediately that he had decided to end the inquiry, explaining that Thomas already amended his filings to include Ginni’s source of income, according to one of the judges in the room.

McKinley asked the committee to bless his decision. The attendee interpreted that request as political cover for what was already a foregone conclusion. McKinley did not mention the plane travel, this judge said.

McKinley noted that the previous committee chair, senior federal appellate Judge Bobby R. Baldock, a President Ronald Reagan appointee, had also concluded months earlier that there was no reason to look more closely. But two judges who sat on Baldock’s committee at the time told ProPublica that Baldock had never discussed any of the allegations with the full committee.

Now, during the 2012 meeting, two other members of McKinley’s committee said they wanted more information on the circumstances of Thomas’ alleged lapses. At a minimum, the pair of judges said, the committee should ask the justice directly about how he came to omit something as basic as the source of his wife’s income, which Thomas had previously reported.

The matter went to a vote. McKinley prevailed. That April, he told the Administrative Office he was dropping the inquiry. The potential undisclosed travel never came up at all, according to one of the attendees. There’s no evidence that any judiciary officials ever investigated whether Thomas was on board the flights and, if so, whether he broke the law by not disclosing it.

Asked about the lack of an investigation into Thomas’ possible trips on Crow’s jet, one former Administrative Office official shrugged. “How would you address it otherwise?” the official said. “‘Hey justice, did you ever take a flight?’”

McKinley did not respond to requests for comment. Baldock declined to comment. The Administrative Office has said that both judges followed protocol and also referred the matter to a smaller group of judges, known as the subcommittee on compliance. The agency did not provide ProPublica with evidence of those conversations.

The handling of the Thomas issue doesn’t surprise lawyers and judges familiar with the disclosure committee’s role. Four former committee members said that although they were responsible for enforcing transparency laws, they understood that they had no actual power or personnel to conduct investigations. In the decades since the ethics law passed, the conference has never referred a single case of a potentially falsified report to the Justice Department for further review.

The judges at the appellate and district levels have long been governed by an ethics code and subject to misconduct investigations by local panels of colleagues. Experts have noted that there is no similar procedure for the Supreme Court justices.

McKinley appears to have violated judiciary policy by not mentioning the Thomas matter or its resolution in the committee’s biannual reports to the conference, according to congressional testimony from Judge Mark Wolf, who was a member of the conference at the time and fought to get more information about the committee’s closed-door proceedings. Instead, Wolf testified, the situation was improperly kept from judges like him, and the entire affair was “shrouded in secrecy.”

(According to the conference’s written policy, the committee’s reports are supposed to be public, but the Administrative Office has declined to provide the 2011 and 2012 documents to ProPublica. The policy itself is not public; ProPublica obtained a copy.)

Thomas did not respond to detailed questions about the episode. On Monday, his friend Mark Paoletta, who has attended vacations with Thomas and once represented Ginni as her attorney, wrote in a piece that ran in The Federalist that he “obtained” those questions. He wrote that Thomas acted consistently with transparency laws and that the conference did not need to investigate because Thomas was not required to disclose private jet travel.

The Ethics in Government Act explicitly requires justices to file accurate financial disclosures annually. “The more reasonable interpretation was that the law does and did cover those types of gifts,” said Jeremy Fogel, a former federal judge who served on the Financial Disclosure Committee for seven years. “The overarching purpose of the legislation was to cover situations like this.”

Other judges and court observers have offered a more institutional explanation for the committee’s apparent unwillingness to investigate Thomas: The Judicial Conference may have no authority over Supreme Court justices to begin with.

“You have to go a long way before you get lower-court judges to call a Supreme Court Justice onto the carpet,” said Russell Wheeler, a senior fellow at the Brookings Institute and one of the country’s preeminent experts on the federal courts.

Few publicly raised questions at the time about whether the committee lacked jurisdiction. Instead, the conference told Congress that “nothing had been presented to support a determination” that the justice had improperly failed to report gifts of travel. That statement has since been repeatedly cited as an exoneration.

“The Judicial Conference issued a letter confirming that Justice Thomas had not improperly failed to disclose information concerning his travel,” Thomas’ attorney, Elliot Berke, wrote in August.

“That couldn’t be further from the truth,” one of the judges on the 2012 committee told ProPublica, noting there was only brief discussion of the committee’s limited remit and no effort to actually investigate the allegations against Thomas. “I’m telling you: nothing.”

Now the Supreme Court is embroiled in the worst ethics scandal in a generation. ProPublica and other outlets have detailed lavish gifts and trips that ultrawealthy conservatives have given to Thomas and, and in one instance, to Justice Samuel Alito. They failed to disclose the largesse, including private plane rides — the same alleged lapse that the Judicial Conference balked at 11 years ago. (Thomas has since acknowledged he should have reported a real estate transaction with Crow and amended a past disclosure to reflect the sale.)

In recent months, some Democratic lawmakers have once again called for the Judicial Conference to investigate Thomas and refer the case to the attorney general. And again, the conference referred their complaints to the Financial Disclosure Committee.

The Administrative Office has declined to explain where the process stands or how the Judicial Conference has squared its duty to enforce the financial disclosure law while possibly lacking the ability — or authority — to investigate the circumstances surrounding justices’ omissions or inaccuracies.

Judges and Kings

The conference’s 2012 handling of the Thomas affair was emblematic of its deferential treatment of judges, according to documents and officials. For years, judicial leaders insisted on preserving perks like free travel and deflected calls for congressional reform when the gifts came to light.

In 1995, the Minneapolis Star Tribune revealed that multiple Supreme Court justices, including liberals and conservatives, had gone on opulent trips funded by West Publishing ahead of a prestigious judicial honor known as the Devitt Awards.

West then enjoyed a near-monopoly on publishing federal court records, an indispensable legal research tool used by lawyers and judges across the country. The Star Tribune reported that the company had hosted the justices and other federal judges on the awards’ selection committee at luxury resorts, trips worth as much as $7,700 per judge. One former justice, Lewis Powell Jr., had written letters asking the company to choose the U.S. Virgin Islands or Palm Beach, Florida, “on the water, superior facilities, and affording many interesting things to do and places to see — particularly for our ladies.”

Justices who attended later decided favorably for West by declining to hear multiple cases that its legal opponents had appealed to the Supreme Court. (Denying such appeals is routine. The justices agree to hear only a small fraction of cases brought to them.)

Sen. Arlen Specter, R-Pa., requested hearings to launch an investigation. Responsibility for containing the damage fell to a pugnacious official who served as then-Chief Justice William Rehnquist’s eyes and ears in Washington: L. Ralph Mecham.

Mecham, a former oil and mining executive and lobbyist, had become the director of the Administrative Office in 1985 and would serve until 2006. The director is also the secretary of the Judicial Conference. Congress created the Administrative Office in 1939 as an alternative to the Justice Department, which had been in charge of running the courts’ day-to-day operations.

Mecham never saw himself as a judicial watchdog. In letters to friends and colleagues, he described his role variously as a “servant,” “ally” or “fireplug” for judges under constant assault by reporters and Congress for, among other things, undisclosed junkets. For this story, ProPublica reviewed hundreds of contemporaneous notes, letters and other memos archived at multiple universities.

L. Ralph Mecham was director of the Administrative Office and secretary of the Judicial Conference for more than 20 years. He spent much of that time working to protect judges. (Screenshot by ProPublica via C-Span)

The legal community began to realize the Administrative Office had effectively become the judiciary’s lobbying and public relations arm. In the 1990s, when critics said the agency was behaving too much like an advocate for judges, officials with the agency responded that they were proud to be “guilty” of the charge.

During his tenure, Mecham’s primary allegiance was to his boss, Rehnquist. The two had regular written correspondence and meetings. (Both men are now dead.)

At the height of the questions about the Devitt Awards, Mecham left a message with Rehnquist’s assistant saying that “he wonders if someone shouldn’t call Senator [Orrin] Hatch to have him call Senator Specter to persuade him to withdraw his request to investigate the Devitt Award,” according to the assistant’s notes of the conversation.

It’s unclear if Rehnquist made such a call. But 10 days later, Mecham reported in a confidential letter that he’d learned Hatch considered Specter’s proposed investigation “ridiculous” and said there would never be hearings on the matter.

After news stories broke about judges going on lavish trips paid for by a publishing company, Mecham worked behind the scenes to head off a congressional inquiry. On the left is a message he left for then-Chief Justice William Rehnquist, with a follow-up memo he sent days later. (Stanford University archives)

Meanwhile, Ralph Nader, the consumer activist, wrote to Rehnquist about the scandal to ask for a prohibition on such trips. As pressure mounted, Justice Anthony Kennedy, who was on the Devitt Awards committee, discussed an alternate plan with the CEO of West Publishing: The company could give a grant to an organization like the American Judicature Society, which would then administer the awards and host the committee meetings.

Kennedy relayed his efforts to Richard S. Arnold, a judicial conference judge and fellow member of the awards committee, and asked him to call West to voice his support for the plan. Arnold wrote in a memo afterwards, “Even though the money will come from a grant by West, this would apparently purge whatever taint exists in the eyes of Mr. Nader or others, and the issue of the propriety of my participation in the administrative decisions affecting legal publishers would disappear.”

Two months later, the society announced it was taking over the Devitt Awards, with funding from West. (A spokesperson for the company said at the time that the move had been years in the making.) Congress did not hold hearings on the matter.

Kennedy, who retired in 2018, did not respond to requests for comment. Arnold died in 2004. At the time, several judges said there was nothing inappropriate about the trips because they were disclosed and it hadn’t impacted their rulings.

Following the Devitt stories, there was more press coverage about federal judges taking extended travel to seminars hosted by private interests and sometimes failing to disclose the trips. Critics noted that the sponsoring corporations and foundations often promoted a free-market, pro-industry ideology while educating judges on issues like regulation.

Iowa Republican Sen. Charles Grassley launched an audit of judges’ travel in 1997. The Government Accountability Office collected individual judges’ travel records. (The GAO has no authority over the Supreme Court, one of the only institutions outside Congress with that immunity.)

Mecham had long feared that Grassley was “going after judges” and tried multiple times to gather intelligence by finding out who was speaking to the senator’s staff and what they provided to the GAO. “I think the judiciary is facing serious problems with respect to the travel issue,” Mecham told one of the conference committees as the data started coming in. But he added a reassurance the next day: “I have asked my staff to do everything they can to present the data in a way to mitigate the damage.”

In summer 1997, Mecham sent a series of letters to the Judicial Conference’s executive committee to warn them about Sen. Charles Grassley’s GAO probes into judicial travel. (University of Utah archives)

It’s unclear how they carried out that plan. Grassley’s probe eventually resulted in lengthy reports detailing thousands of judges’ trips, from Jackson Hole, Wyoming, to Panama, funded by taxpayers or private interests.

In the end, though, Congress imposed no new travel restrictions on judges.

In an interview with ProPublica, Mecham’s former associate director, Clarence Lee, defended his boss, saying the Administrative Office can successfully help enforce transparency laws and hold the judiciary accountable. He said the agency often drew the ire of judges because it disciplined their clerks for infractions like misusing office computers. Lee dismissed congressional probes as political stunts.

“Any mechanism put in place that allows a secondary group to second guess their [judges’] behavior can have draconian results,” he said. “You don’t have an inspector general for kings or judges because then you’d no longer have a king or a judge."

Thomas’ financial disclosure report for 1997. Thomas disclosed private air travel on Harlan Crow’s jet. He later stopped reporting similar trips and has since argued that he believed that such gifts were exempt from disclosure. (Thomas financial disclosure, provided by Documented)

In the early 2000s, public concern and political pressure continued. One study conducted by a public-interest law firm found that nearly a quarter of the judiciary had traveled to at least one seminar put on by conservative groups between 1992 and 1998. These events were often at resorts while some of the judges in attendance were trying cases those groups had a stake in. And almost 1 out of every 9 federal judges — appointed by both Democratic and Republican presidents — had failed to report a privately funded trip during that same stretch, according to the study, which made national headlines.

Some judges on the conference broke ranks and advocated internally for reform. Mecham urged Rehnquist to fire the outspoken apostates from their committee posts, “not only because they have been repeatedly disloyal to you but also because they have been disloyal to the Judicial Conference.”

Abner Mikva, then a retired federal appellate judge, leading liberal congressman and personal mentor to Barack Obama, went public. He submitted an article to a law review journal titled “Judges, Junkets and Seminars.”

“It grieves me that so many judges feel threatened by proposals to change the present system,” wrote Mikva, who died in 2016. “If that large a portion of the public — legislators, the media, lawyers, litigants — sees a problem, then it is a problem that needs redressing.”

“Looking in the mirror,” he added, “is not enough to guarantee the perception of honesty and integrity that has to be the touchstone of a successful judicial system.”

In the aftermath, the Judicial Conference made some concessions on travel rules, including a requirement for seminars to report their funders before judges can attend and better public access to financial disclosures. But the judiciary has largely managed to prevent substantive reform from Congress, including at least two failed Senate bills that would have restricted travel and gifts or created an independent ethics monitor.

Twenty-Something Temps

The Administrative Office does not consider itself a regulator. But staff inside its tiny financial disclosure division are responsible for screening judges’ financial disclosures. Employees there describe a flawed process.

Those who examine the disclosure forms are often temps. Two former examiners told ProPublica they did not recall any training on how to review the gift portion of the reports. And since 2019, they no longer compare judges’ assets on their current disclosure with the previous year’s, which many staffers had considered the bare minimum of due diligence. The committee decided it “could rely on the filer’s certification that the report is accurate,” according to a recent Judicial Conference report. If someone does happen to catch something that may be wrong with a report, it is typically handled with a letter asking the judge to fix it.

One former temp, who was hired straight out of college, said most of the supervision she received was about using proper grammar in her emails. “Guys have been on the bench for 20 years and the last thing they want to do is talk to a 20-year-old who’s telling them they’re not doing their job right,” said another examiner.

Filing instructions for judges inform them that there is no longer a side-by-side comparison of financial disclosures. In the past, examiners had used that process to look for discrepancies in judges’ assets. (Judicial Filing Instructions obtained by Fix the Court)

Staffers without law degrees have routinely given ad hoc legal guidance to judges about their financial disclosures because of staffing shortages, one former Administrative Office official told ProPublica. Contemporaneous notes also show that’s been an internal practice.

“That’s awful,” said Peter McCabe, who was a top official at the agency for decades. “I can’t believe that.”

After senior staff sign off on the work, the disclosures are sent to the Financial Disclosure Committee for final approval, which is largely ceremonial, said three former committee judges. “It’s an assurance that a report has been filed,” one told ProPublica. “Is it truthful? I have no idea.” Two said they didn’t receive any ethics training for how to interpret and apply the Ethics in Government Act and instead relied on the same standards they applied on their own disclosures.

What Is the Solution?

Public trust in the judiciary is the lowest it’s been in 50 years. Now that the Supreme Court has adopted its own ethics code, questions remain about how that code will be enforced.

There’s no simple fix. Critics caution some proposed solutions could breach the separation of powers.

Some expert proposals:

APPOINT a panel of respected retired judges to advise Supreme Court justices on recusal questions, or a council of lower-court federal judges — similar to some state supreme court systems — to investigate ethical complaints against the justices above them.

INSTALL an inspector general with authority over the entire judiciary, including justices.

CREATE an independent ethics office inside the judiciary, modeled after the Office of Government Ethics in the executive branch.

REWRITE gift rules to prohibit judges from accepting expensive gifts without approval — similar to rules for the legislative branch — and close gaps in the financial disclosure instructions.

REQUIRE those who file briefs in Supreme Court cases to disclose their funders so that lawyers and the public can identify any potential conflicts with the justices.

FIX procedures inside the Administrative Office with more legal staffers, faster turnaround on releasing public records, and better quality controls for screening judges’ self-reported financial disclosures.

The process amounts to the “honor system,” six former staffers and judges on the Financial Disclosure Committee said.

Federal law requires the disclosures to be made available 30 days after being filed. In June, ProPublica asked the Administrative Office for dozens of disclosures. But the agency still hasn’t released them, citing a backlog of requests.

The judiciary has “redaction authority” to remove parts of judges’ disclosures from public view. It’s meant to be invoked if revealing something, like a home address, would pose a security threat for judges or their family. The Administrative Office told ProPublica the authority “is strictly interpreted and applied.”

However, a 2018 GAO report found nearly one in four requested redactions was for something other than an obvious security risk. Some judges redacted gifts they had received or the value of their stocks. On top of that, the GAO found, the Administrative Office has at times ignored its legal requirement to submit annual reports to Congress on how judges are using their redaction authority.

Staff inside the office also play a crucial role in shaping the judiciary’s rules for what gifts judges can accept and what they need to disclose. That, too, has at times been used as an opportunity to help judges preserve their perks, records and interviews show.

In late 2022, after decades of criticism, the judicial conference began work to refine the language about financial disclosure requirements in the judiciary’s rules.

When the new wording came out in March, it did not substantively change its rules about what fell under the controversial personal hospitality exception. Instead, the conference merely made explicit that judges must disclose gifts of transportation, like private jet rides. In a recent report to the conference, the committee itself characterized the update as “clarifying.”

An initial proposal for the March update had gone further, according to internal documents. Lawyers at the Administrative Office provided an analysis for the Financial Disclosure Committee laying out how the Senate defined personal hospitality more strictly and gave a proposal for some new, more prescriptive language.

The update would have imposed tighter disclosure requirements for when a judge gets a free stay at someone’s house. That language was softened before the final cut.

The draft language required stays to be disclosed if that property gets “rented out to others other than on an occasional basis.” The final guidance, however, lowered that threshold and instead requires judges to disclose the gift only when they’ve stayed at a property that’s “regularly rented out to others for a business purpose.”

The goal for some of the other proposed edits, deputy general counsel Laurina Spolidoro explained in an email obtained by ProPublica, was to present “a consideration of factors” to judges “rather than drawing bright lines.”

To Smith, Spolidoro’s subordinate at the time, the message was clear: judges wanted the ability to continue accepting certain gifts without having to disclose them. Spolidoro did not respond to requests for comment, but an Administrative Office spokesperson refuted Smith’s characterizations and said those in the office take their job seriously.

Smith said she quit the Administrative Office because she wasn’t allowed to do her job as an ethics attorney, and when she tried to make changes to the financial disclosure program, she was stripped of her duties.

Smith said she was told by Spolidoro and others that “the judiciary is outside the Ethics in Government Act.”

Kathleen Quinn and Marissa Muller from Berkeley Journalism’s Investigative Reporting Program contributed research.

Do you have any tips about justices or judges? Contact Brett at brett.murphy@propublica.org or on Signal at 508-523-5195.

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