ProPublica

by Paige Pfleger, WPLN/Nashville Public Radio

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

To hear the state of Tennessee tell it, Knoxville’s Richard L. Bean Juvenile Service Center has shown “significant and consistent improvement.” It no longer illegally locks kids up alone in cells, as an investigation by ProPublica and WPLN exposed last month.

But a closer look at the facility’s most recent inspection by the state Department of Children’s Services tells a different story. Instead of secluding children against their will, the facility claims that kids are voluntarily agreeing to be locked up alone. In the first three months of 2023, the facility used this “voluntary” seclusion more than 1,000 times — even though there were usually only about 30 kids staying there. That’s three times as many incidents as a similar period the year before.

Tennessee law closely regulates the conditions under which kids can be locked up alone, against their will in juvenile detention centers. But a 2021 state law permits facilities to isolate children if the child requests a cooling-down period. To be considered truly voluntary under the law, kids have to be able to leave whenever they want.

Zoe Jamail, policy coordinator of Disability Rights Tennessee, says it looks like the facility is classifying the lockups as voluntary to get around the law. Her organization acts as a monitoring agency for juvenile detention facilities in the state.

“One of the effects of calling this voluntary is that you then no longer have to comply with any of the parameters that the state has put around seclusion,” she says.

Both inspections by DCS and reports from detained youth also suggest the seclusions are not truly voluntary.

In 2021, after the new law took effect, a DCS inspector visited the center. She documented that the facility’s reliance on these voluntary seclusions was on the rise, and that it was “unclear” if the youth knew they could leave their cell by choice.

“You can’t come in and out — like, the door’s locked,” says one teenager that we’re referring to by his middle name, Tyler, to protect his privacy as a minor.

A cell at the Bean Center where kids are sometimes kept in isolation (William DeShazer for ProPublica)

Tyler spent months at the Bean Center this year. He says a “voluntary lockup” meant at minimum two hours in his own cell before a guard would let him out. And if he asked to get out sooner?

“They’d get mad. They’d be like, ‘You can’t do that.’”

Tyler says he and other kids would request a voluntary lockup to sleep more or get out of class.

But this summer, he says Bean started cracking down on that by sending them to another cellblock called brown pod for even longer than they wanted.

“Bean made it where they move you to brown and you’re in there for like the whole day,” Tyler says. “People who would ask to go on lock up would still be locked up for like two or three days before they’d come back.”

Another teen who we’re calling by his middle name, Francisco, says he was locked up for a day after asking for a brief voluntary lockup.

The way he remembers it: “Mr. Bean decided that he was mad that everybody was taking voluntaries because school wasn’t happening. He just was like: ‘All right, then everybody’s going to brown for a day. And if you don’t go to school no more, you go to brown for the whole day, to the next day.’”

Bean admitted to that policy during our interview in September.

“So what I started doing is put them in seclusion until the next morning, and then they want to go to school,” Bean said then. “And so that’s working pretty good.”

Superintendent Richard L. Bean has been running a juvenile detention center in Knoxville, Tennessee, since 1972. (William DeShazer for ProPublica)

Bean and the county board that oversees the center didn’t respond to requests for comment. They haven’t responded since we ran our story last month, which found that the center was locking kids up in seclusion more than other facilities in the state — often as punishment and for longer than the law allowed.

In a statement, DCS said it wants to “ensure that this facility, and any juvenile detention center, has an appropriate policy in place that requires the facility to notify a youth choosing to enter voluntary seclusion that the youth may terminate the voluntary seclusion at will.”

The department says if a kid can’t end the lockup at will, then it no longer qualifies as voluntary. And if it doesn’t, then Bean’s reliance on illegally locking kids up alone has only increased.

by Eric Umansky, with additional reporting by Umar Farooq

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

When Barbara and Belvett Richards learned that the police had killed their son, they couldn’t understand it. How, on that September day in 2017, did their youngest child come to be shot in his own apartment by officers from the New York Police Department?

Miguel Richards, who was 31, grew up in Jamaica and had moved to New York about a year earlier after coming to the United States through a work-study program. His father’s friend gave him a job doing office work, and he rented a room in the Bronx. But he started to struggle, becoming reclusive and skipping days of work. His mother, with whom he was particularly close, pleaded with him to return to Jamaica. “It’s as if I sensed something was going to happen,” she says. “I was calling him, calling him, calling him: ‘Miguel, come home. Come home.’”

His parents knew he had never been violent, had never been arrested and had never had any issues with the police. What details they managed to gather came from the Bronx district attorney: Richards’ landlord, who hadn’t seen him for weeks, asked the police to check on him. The officers who responded found Richards standing still in his own bedroom, holding a small folding knife. And 15 minutes later, they shot him.

Richards’ death marked a historic turning point. It was the first time a killing by officers was recorded by a body camera in New York. The new program was announced just months before as heralding a new era of accountability. Now, a week after the shooting, the department posted on its website a compilation of footage from four of the responding officers. The video, the department said in an introduction to the presentation, was produced “for clear viewing of the event as a totality.” And as far as the department was concerned, the narrative was clear. Sometimes “the use of deadly force is unavoidable,” the police commissioner at the time, James O’Neill, wrote in an internal message. The level of restraint shown by all officers, he said, is “nothing short of exceptional.” And, he added, “releasing footage from critical incidents like this will help firmly establish your restraint in the use of force.”

Richards’ parents were not convinced. Belvett watched footage at the district attorney’s office. What he saw, and what was released, did not, in fact, show that the use of deadly force was unavoidable. He later learned that the department had not released all the footage. What else didn’t they know about their son’s death?

Belvett and Barbara Richards’ 31-year-old son, Miguel, was killed by New York City police officers in 2017. (Naila Ruechel for The New York Times)

When body-worn cameras were introduced a decade ago, they seemed to hold the promise of a revolution. Once police officers knew they were being filmed, surely they would think twice about engaging in misconduct. And if they crossed the line, they would be held accountable: The public, no longer having to rely on official accounts, would know about wrongdoing. Police and civilian oversight agencies would be able to use footage to punish officers and improve training. In an outlay that would ultimately cost hundreds of millions of dollars, the technology represented the largest new investment in policing in a generation.

Yet without deeper changes, it was a fix bound to fall far short of those hopes. In every city, the police ostensibly report to mayors and other elected officials. But in practice, they have been given wide latitude to run their departments as they wish and to police — and protect — themselves. And so as policymakers rushed to equip the police with cameras, they often failed to grapple with a fundamental question: Who would control the footage? Instead, they defaulted to leaving police departments, including New York’s, with the power to decide what is recorded, who can see it and when. In turn, departments across the country have routinely delayed releasing footage, released only partial or redacted video or refused to release it at all. They have frequently failed to discipline or fire officers when body cameras document abuse and have kept footage from the agencies charged with investigating police misconduct.

Even when departments have stated policies of transparency, they don’t always follow them. Three years ago, after George Floyd’s killing by Minneapolis police officers and amid a wave of protests against police violence, the New York Police Department said it would publish footage of so-called critical incidents “within 30 days.” There have been 380 such incidents since then. The department has released footage within a month just twice.

And the department often does not release video at all. There have been 28 shootings of civilians this year by New York officers (through the first week of December). The department has released footage in just seven of these cases (also through the first week of December) and has not done so in any of the last 16.

Asked about the department’s limited release of footage, a spokesperson pointed to a caveat, contained in an internal order, that footage can be withheld because of laws or department policy. “The NYPD remains wholly committed to its policy of releasing such recordings as quickly and responsibly as circumstances and the law dictate,” the spokesperson wrote. “Though transparency is of the utmost importance, so too is the Police Department’s commitment to preserving privacy rights.” The department did not say which policies require the withholding of footage and did not address other questions about its record on the cameras. (Mayor Eric Adams’ spokesperson did not make him available for comment.)

For a snapshot of disclosure practices across the country, we conducted a review of civilians killed by police officers in June 2022, roughly a decade after the first body cameras were rolled out. We counted 79 killings in which there was body-worn-camera footage. A year and a half later, the police have released footage in just 33 cases — or about 42%.

This article is the product of more than six months spent investigating how the police have undermined the promise of transparency and accountability that accompanied the body-camera movement. We interviewed dozens of department insiders, government lawyers, policing experts and advocates and reviewed hundreds of pages of internal reports, obtained through Freedom of Information requests, and dozens of hours of surveillance-camera and body-camera footage, including some that the New York Police Department fought against disclosing. The reporting reveals that without further intervention from city, state and federal officials and lawmakers, body cameras may do more to serve police interests than those of the public they are sworn to protect.

To Seth Stoughton, a former police officer who is now a professor at the Joseph F. Rice School of Law at the University of South Carolina, body cameras represent the latest chapter in America’s quest for a technological fix to the deeply rooted problem of unchecked state power. “Dash cams were supposed to solve racial profiling,” he says. “Tasers and pepper spray were supposed to solve undue force. We have this real, almost pathological draw to ‘silver bullet’ syndrome. And I say that as a supporter of body-worn cameras.” He later added, “We just said to police departments: ‘Here’s this tool. Figure out how you would like to use it.’ It shouldn’t be a surprise that they’re going to use it in a way that most benefits them.”

Jeff Schlanger, a former New York deputy commissioner who had an oversight role during the implementation of body-worn cameras and left the department in 2021, believes that the police have often failed to use the cameras for accountability and that political leaders need to do more. “Mayors, City Council members, all locally elected officials,” he says, “should be losing sleep over the lack of meaningful independent oversight of the police.”

Jeff Schlanger is a former deputy commissioner who left the New York Police Department in 2021. “Mayors, City Council members, all locally elected officials,” he says, “should be losing sleep over the lack of meaningful independent oversight of the police.” (Naila Ruechel for The New York Times)

When full footage has been released, often by prosecutors or after public pressure, it often contradicts initial police accounts. In 2015, a white officer in Cincinnati killed a Black man during a traffic stop. The officer said his life was in danger. But his body-camera video showed that was a lie, and he was prosecuted for murder. (Charges were dropped after two mistrials.) And in Philadelphia this August, an officer shot and killed a man after, the police said, he lunged at officers with “a weapon.” In fact, footage released by the district attorney — who charged the officer with murder — shows that the man was sitting in his own car.

In New York, Miguel Richards’ parents weren’t the only ones who had doubts about the department’s claims that the shooting was unavoidable. The footage the department released stopped right when the officers fired at Richards. It didn’t include the minutes after the shooting, and it didn’t include footage from other police units that responded.

Ruth Lowenkron, a disability rights lawyer who specializes in mental health issues, wanted to see it all. Working for New York Lawyers for the Public Interest, a legal-advocacy nonprofit, she and her colleagues, along with activists, had begun pushing the city to find an alternative to using the police as first responders to people in crisis. On her second day on the job, a sergeant shot and killed a 66-year-old woman who had schizophrenia and was holding a baseball bat in her Bronx apartment. The department’s own investigators concluded that the sergeant escalated the situation and caused the shooting.

Now, watching the video the department released of Richards’ shooting, Lowenkron feared that the same thing happened to him. The department’s edited footage showed the officers making a few attempts to connect with Richards early in the encounter. “What’s your name, man?” one officer asked. But they were also barking increasingly terse commands. “You are seconds away from getting shot,” one officer said. “Do you want to die?” A few minutes later, as one of them warned that Richards might have a gun, the officers fired.

Lowenkron filed a records request, certain that there was more to the story. In releasing the partial footage, the police commissioner had vowed that the “NYPD is committed to being as transparent as possible.” But nearly three weeks after her request, Lowenkron received a different message from one of the department’s records officers: “I must deny access to these records.”

Ruth Lowenkron has fought the New York Police Department for years for access to body-camera footage in various cases. Of one video she received, she says, “It was a horror movie.” (Naila Ruechel for The New York Times)

Body-worn cameras were adopted by police departments across the country in the wake of widespread Black Lives Matter protests in 2014, sparked when Michael Brown was killed by the police in Ferguson, Missouri. The officer who shot Brown was not equipped with a camera, and there was a dispute about what happened in the last moments of Brown’s life. Amid deep schisms over race, justice and policing, there was at least agreement that police interactions should be recorded. Brown’s mother pressed for the technology to become standard equipment. “Please,” she begged Missouri legislators, “let police-worn body cameras be a voice of truth and transparency.”

President Barack Obama put the cameras at the center of his plans to restore trust in policing. Cities quickly began spending millions on the devices, expenditures that continue today for storage and software. Los Angeles has spent nearly $60 million since getting cameras in 2016. In Philadelphia, where footage is rarely released, the cameras have cost taxpayers about $20 million. New York City has spent more than $50 million. But whether citizens benefit from the cameras they’re paying for is often up to the police, who have often been able to keep footage hidden from the public in even the most extreme cases. In 2018 in Montgomery, Alabama, an officer unleashed his police dog on a burglary suspect without warning, severing the Black man’s femoral artery and killing him. The police and the city have refused to release footage for five years, arguing that it could cause “civil unrest” and that the officers could face “embarrassment.” But a lawyer for the man’s family, which is suing the city, got a copy of the transcript in the discovery process and entered it into the court record. “Did you get a bite?” an officer asked the one who had the dog, according to the document. “Sure did, heh, heh,” the K-9 officer responded.

The secrecy undercuts the deterrent effect on officer behavior that many had presumed body cameras would produce. Three years before the Minneapolis police officer Derek Chauvin murdered George Floyd by kneeling on his neck, body-camera video caught him kneeling on the necks of others. In 2017, Chauvin dragged a handcuffed Black woman out of her house, slammed her to the ground and then pressed his knee into her neck for nearly five minutes. Three months later, Chauvin hit a 14-year-old Black boy at least twice in the head with a heavy flashlight, choked him and pushed him against a wall. The boy cried out in pain and passed out. Chauvin pushed a knee into his neck for 15 minutes as the boy’s mother, reaching to help him, begged, “Please, please do not kill my son!”

The footage was left in the control of a department where impunity reigned. Supervisors had access to the recordings yet cleared Chauvin’s conduct in both cases. Minneapolis fought against releasing the videos, even after Chauvin pleaded guilty in December 2021 to federal civil rights violations in one of the cases. A judge finally ordered the city and the police to release the tapes this April, six years after Chauvin abused the boy. “Chauvin should have been fired in 2017,” says Robert Bennett, a lawyer who represented both of the victims. If the police had done that, “the city never burns. We’d have a downtown still. It’s a parade of horribles. All to keep something secret.”

A Department of Justice report from this summer found that the secrecy and impunity was all part of a larger pattern in the Minneapolis Police Department. Shootings, beatings and other abuse had routinely been captured on video. But the department didn’t make the footage public or mete out punishment.

There was a similar dynamic in Memphis, Tennessee, where officers in a street-crimes unit regularly abused residents. They wore body cameras but faced no consequences until the case of Tyre Nichols, who was beaten to death this January by officers in the unit, attracted national attention. The footage showed that some of the officers took their cameras off. Others knew they were being recorded and pummeled Nichols anyway. It was only after public outcry that the department took the rare step of releasing footage, which contradicted initial police accounts and led to state and federal charges for five officers.

Some politicians have often quietly enabled obstacles to this kind of accountability. When South Carolina became the first state in the nation to require the use of cameras in 2015, Nikki Haley, the governor at the time, made the announcement with the family of Walter Scott standing behind her. Scott was a Black man who, two months earlier, was stopped by the police for a broken taillight and was shot in the back and killed when he tried to run away. A witness filmed the shooting, and that video contradicted official police accounts.

The way to true reform is through using body cams as an early-warning system, as a way to correct small mistakes before they become big mistakes.

—Jeff Schlanger, former New York deputy commissioner

“This is going to make sure Walter Scott did not die without us realizing that we have a problem,” Haley said as she signed the legislation. What the governor didn’t say was that the same law stipulated that footage from cameras is “not a public record subject to disclosure,” thus relieving police departments from any obligation to release it. And indeed, little footage has ever become public in South Carolina.

In 2021, York County sheriff’s deputies responding to a call for a wellness check found a young man sitting in his pickup truck with his mother standing next to him. They fired at him nearly 50 times. The sheriff, who refused to release body-camera footage, said the man pointed a shotgun at deputies. When the man, who survived, obtained the footage after suing, it showed no such thing. So far this year, the police in South Carolina have killed at least 19 people. The police have released footage in only three of those cases. When we asked one department, the Spartanburg County Sheriff’s Office, why it had not, a spokesperson pointed to the law, writing, “We never release that footage.”

The pattern has become so common across the country — public talk of transparency followed by a deliberate undermining of the stated goal — that the policing-oversight expert Hans Menos, who led Philadelphia’s civilian police-oversight board until 2020, coined a term for it: the “body-cam head fake.” And there is no place that illustrates this as well as New York City, the home of the world’s largest municipal police force, some 36,000 officers strong.

New York’s adoption of body-worn cameras started with a moment of unintentional inspiration. In 2013, Judge Shira Scheindlin was hearing testimony in a federal lawsuit in which multiple advocacy groups claimed that the Police Department’s aggressive “stop and frisk” policy was racially biased and unconstitutional. One day during the trial, an expert witness for the city mentioned a new tool for accountability — body-worn cameras — in passing.

“My head snapped when I heard the words,” Scheindlin recalled this year. “I thought, ‘That could be a useful remedy!’”

Two months later, Scheindlin issued a historic ruling that New York’s stop-and-frisk practices were unconstitutional. She ordered the Police Department to begin piloting body-worn cameras, writing that they were “uniquely suited to addressing the constitutional harms at issue in this case.” Scheindlin laid out three ways the cameras would help: “First, they will provide a contemporaneous, objective record of stops and frisks.” She continued, “Second, the knowledge that an exchange is being recorded will encourage lawful and respectful interactions on the part of both parties. Third, the recordings will diminish the sense on the part of those who file complaints that it is their word against the police.”

But in a preview of obstacles that would follow, the department was slow to roll out the devices, even as they were becoming common in other cities. More than two years after Scheindlin’s ruling, the department hired researchers at New York University to conduct a survey about what residents wanted from a body-camera project. The community’s answers were overwhelming and clear: transparency and disclosure.

Officers, however, wanted the opposite. They were concerned that the recordings would “show a different side of the story than what would otherwise be told,” according to a separate NYU survey. To Scheindlin and the plaintiffs in the stop-and-frisk case, that was exactly the point.

When the department released its policy in April 2017, it was clear whose opinions held more sway. No video would automatically become public. Anyone that requested it would have to go through an opaque, often slow-moving Freedom of Information process — in which the department itself would be the arbiter of what would be released (though the courts could review that decision).

The policy blunted the technology’s potential for accountability in other ways. Officers could decide when to start filming, instead of at the beginning of all interactions as the public wanted. And while the public had little access to footage, the police had privileged access: Officers who were the subjects of complaints would be allowed to watch the footage before having to give any statements — something that could allow them to tailor their accounts to the video.

The policy was “so flawed that the pilot program may do little to protect New Yorkers’ civil rights,” Ian Head and Darius Charney of the Center for Constitutional Rights wrote in a guest essay in The New York Times. “Instead, it might shield police officers from accountability when they engage in misconduct.”

Still, on April 27, 2017, Commissioner James O’Neill and Mayor Bill de Blasio held a news conference at a precinct in Washington Heights to celebrate the rollout of body-worn cameras. Stepping up to the lectern, O’Neill said he was initially skeptical of the cameras but had become a believer. “I’m totally convinced now that this is the way forward,” he said. “These cameras have a great potential to de-escalate.”

Then the mayor went to the lectern. Officers had long felt that de Blasio, a self-proclaimed progressive, was too supportive of Black Lives Matter protests and not sufficiently supportive of the police. That sentiment turned into rage when a man espousing hatred of the police murdered two officers in late 2014. Hundreds of police officers turned their backs on the mayor at the funerals. Ever since, de Blasio had been working to repair the relationship.

“This is an historic day for New York City,” de Blasio said, with O’Neill by his side. “This is the first day of the era of body-worn cameras, and that means we are going on a pathway of transparency and accountability that will benefit everyone.”

Five months later, officers killed Miguel Richards, making his case the first in which the potential of body-camera video would be tested. But Ruth Lowenkron, the public-interest attorney who filed a request for the footage, was getting little from the Police Department. After it rejected her initial request, she appealed the decision. The department sent her some redacted footage but again rejected her request for all of it.

Disclosing the full footage would be an “unwarranted invasion of personal privacy,” the department wrote. Whose privacy — the dead man’s or the officers’ — was not explained. Releasing the full footage, the department insisted, could “endanger the life or safety of any person.”

The letter came from the department’s legal unit, led by its deputy commissioner, Larry Byrne, who was known for his fierce advocacy for the department. From the outset of the body-worn-camera program, Byrne made it clear that he was resistant to widespread release of footage. “They are not public records in the sense that, because the officer turns the camera on, they are now in the public domain,” Byrne told NY1 in 2015. In fact, he insisted, “most of this footage” would never be made public.

Lowenkron kept requesting the Richards footage and kept getting rejected or sent redacted video. In July 2018, she and her colleagues decided to file a lawsuit in state court demanding the full footage. They even got a former Police Department lawyer, Stuart Parker, to help litigate the suit pro bono. The department’s various explanations for its denials “pissed me off,” Parker recalls. He retired from the department as an assistant commissioner in 2016, the year before cameras were widely rolled out. But he had been excited by their potential and was frustrated by the department’s kneejerk secrecy. “There’s a good side to the department,” he says, “but there’s always been a self-serving dark side to it too.”

In response to the suit, the department argued in legal filings that it had blurred the footage “in order to protect the privacy of both Richards and his family.” But Lowenkron and her team had obtained affidavits from Richards’ parents saying that the department never asked them whether they wanted the footage released or redacted. And what the Richardses wanted, they said, was for the full footage to be released to the public.

Public disclosure of footage isn’t the only path to hold officers in New York accountable for misconduct. For 70 years, the city’s Civilian Complaint Review Board had been vested with the responsibility to investigate New Yorkers’ allegations against the police. From the start, though, its powers were weak. The agency was actually part of the Police Department, and its board consisted of three deputy police commissioners. The department fought efforts over the years to make the agency independent. In the face of a plan in the mid-1960s to include civilians on the Civilian Complaint Review Board, the head of the largest police union, then called the Patrolmen’s Benevolent Association, said, “I’m sick and tired of giving in to minority groups with their whims and their gripes and shouting.”

The agency eventually became independent in 1993 after stiff opposition months before from off-duty officers. Thousands of them — along with Rudy Giuliani, then a mayoral aspirant after losing the previous election — staged a huge protest outside City Hall, with many of them going on to block the Brooklyn Bridge. After the changes, the review board still relied on an often noncooperative Police Department for records, and its investigations frequently petered out amid competing accounts. And like many civilian oversight boards across the country, in the rare cases when it substantiated misconduct, it could only recommend discipline to the police commissioner, who could and often did ignore it.

Many civilians, whom the board relied on to initiate complaints, had long grown skeptical of the agency’s ability to ensure that officer misconduct had consequences. But the advent of body-camera video promised to fundamentally change how the agency worked. For the first time, staff members would have an objective record of the incidents they investigated. That was Nicole Napolitano’s hope when she joined the review board as its new director of policy and advocacy in September 2017 — the same year body cameras were rolled out in New York and one week after officers killed Richards. “We talked about it in detail” at the agency, she says of the initial footage of the Richards shooting. “We thought, ‘Look at what body-worn cameras can show us.’”

Napolitano, who is married to a retired detective, knew it would be a challenge. As a senior policy manager in the Office of the Inspector General for the New York Police Department, she had seen how the department could simply ignore the recommendations in her reports. Napolitano hoped she would have more direct impact in her new, more senior position at the review board. But what she hadn’t appreciated was how much the police controlled the literal tools of their own oversight.

Nicole Napolitano, as director of policy and advocacy at the Civilian Complaint Review Board, argued for a law that would take away the New York Police Department’s sole control over camera footage. She was let go in November 2020. (Naila Ruechel for The New York Times)

As with most civilian boards across the country, the agency did not have its own access to footage. Like the public, it, too, had to rely on the cooperation of the department. To try to obtain footage, the board had to navigate a baroque multistep process. Written requests were submitted to a department “liaison” unit, which in turn forwarded them to the legal unit for review. Then the department had to locate the footage, which was a significant undertaking because it wasn’t cataloging the footage in any systematic way. Unlike in many other cities, the department’s cameras had no GPS location data. If a civilian making a complaint didn’t know an officer’s name or badge number, investigators and even the department could have a hard time finding footage.

Perhaps most problematic for Napolitano, though, was the fact that the review board’s investigators had to agree to a strict set of conditions before watching videos of incidents. If they spotted other, unrelated misconduct, they were not allowed to investigate it. “If you were setting up a system to be shitty,” one agency insider says, “this is the system you’d create.”

At times, the department’s animosity toward the board was palpable. Napolitano remembers one meeting in 2017 between board officials and Kerry Sweet, then a top official at the department’s legal bureau who helped oversee the body-camera rollout. As other police brass shuffled in, Sweet said they had missed a chance to “bomb the room” when only board officials were there, which would have “solved everything.” (Sweet, who has since retired, says he doesn’t recall saying that, but added, “On reflection, it should have been an airstrike.”)

Napolitano and her colleagues noticed an even more troubling trend: The department would often tell the review board that the footage it requested didn’t exist — only for the civilian agency to later discover that wasn’t true. According to an analysis the agency put out in early 2020, this happened in nearly 1 of every 5 cases.

Napolitano thought there was a straightforward solution to the department’s stonewalling: The review board should be able to directly log in to the department’s system where footage is stored. That’s how it worked with civilian oversight boards in a few other major American cities, including Chicago, which revamped civilian oversight after Laquan McDonald was killed in 2014 and the city tried to withhold footage that contradicted officers’ accounts. Chicago’s oversight board now not only has direct access to videos but also regularly releases footage publicly, and its investigators have used it to successfully push for officers to be fired for misconduct. Napolitano didn’t see a reason for it to be otherwise in New York. So in her first semiannual report, at the end of 2017, she noted the challenges of getting footage — and called on the city to give the review board direct access. Both the department and City Hall, Napolitano says, “freaked” out.

“It was a rough time for de Blasio when it came to public safety,” Napolitano added, referring to the mayor’s tenuous relationship with the police. “In a dispute between CCRB and NYPD, City Hall always chose the NYPD. Always.”

“I don’t agree,” de Blasio says. “The tension between the CCRB and the NYPD is natural and built-in. I decided each issue on the merits and according to my values.” He went on, “The blunter truth is when a progressive challenges the police culture and the police unions and the status quo of American policing, the left is not going to have their back. You’re not getting that thank-you card. And the right will viciously attack.”

While the department fought Lowenkron and Napolitano on the release of body-camera footage, there was one group that had access to all of it and could use it to check for misconduct: the department’s own investigators. After every police shooting, detectives with the Force Investigation Division review the incident to see whether officers complied with department policy. The Richards case was the first time body-worn-camera footage could let them see what actually happened in a killing by officers. As investigators dug through the video and interviewed officers in the weeks and months after the shooting, they saw a far more complicated picture than the one the police commissioner painted.

As the tape began, one officer, Mark Fleming, beamed his flashlight into the far side of Richards’ nearly bare, unlit bedroom. Richards was standing perfectly still in the dark, seemingly catatonic, wearing a blue polo shirt and sunglasses and holding a knife in his left hand.

Department guidelines for dealing with people in crisis who do not pose an immediate threat say officers should try to “isolate and contain” the person. “The primary duty of all members of the service is to preserve human life,” department policy states. Officers are also instructed to wait for a supervisor’s permission before trying to subdue someone in crisis.

At first, it appeared that the officers who encountered Richards were following their training. “Look, we could shut the door,” Officer Redmond Murphy suggested to his partner. But Fleming, who had served more years in the department, quickly rejected the idea. He kept telling Richards to drop the knife, and he radioed for an officer with a Taser.

Two officers from the specially trained Emergency Services Unit, which deals with people experiencing mental health crises, arrived. Then Murphy said he thought he saw something, perhaps a gun, in Richards’ right hand, which was obscured behind a backpack on the bed. “Hold up,” one of the ESU officers told Fleming and Murphy before heading back downstairs to grab protective gear. “I don’t know if it’s a toy or a gun,” Murphy quickly added.

As the specialists went downstairs, the officer with the Taser, Jesus Ramos, went upstairs and joined Fleming and Murphy outside Richards’ room. “Do you want to take him down now?” Ramos asked them. “Yeah,” they both answered.

At nearly the same moment, a radio command came from headquarters, emphasizing department guidelines. “Isolate and contain,” the dispatcher told the officers. “Use nonlethal force whenever possible.” As Ramos lifted his Taser and stepped into the room, Fleming — who later said Richards was raising his arm — fired his gun. Murphy fired, too. It’s impossible to see that moment in the grainy, shaky footage. The clearest angle would most likely have been Fleming’s camera, but it was covered by his arm as he held his flashlight.

The shooting of Miguel Richards was the first to be recorded by NYPD body cameras. Police Commissioner James O’Neill wrote in an internal message that releasing footage would show officers’ “restraint in the use of force.” Below are clips from the videos the police initially released. They contain graphic content.

Officers answered a call for a wellness check and found Richards standing still in the far corner of his bedroom, holding a small folding knife. “Look, we could shut the door,” Officer Redmond Murphy said at one point. Instead, police shouted at Richards for the next 15 minutes.

Watch video ➜

Murphy says he thinks he sees something in Richards’ hand: “I don't know if it's a toy or a gun.” Officer Mark Fleming says: “I don’t want to shoot you if you’ve got a fake gun in your hand. You hear me? But I will shoot you if that’s a real gun.”

Watch video ➜

A radio command from headquarters reminded the officers of NYPD guidelines to “isolate and contain” a person in a mental health crisis and to “use nonlethal force whenever possible.” Fifteen minutes after arriving, they opened fire. An internal investigation later found that Richards “was contained and posed no immediate threat of danger.”

Watch video ➜

Fleming and Murphy fired 16 times, hitting Richards seven times, including twice in the chest, rupturing his aorta. As gunshots rang out, the supervisor they were supposed to wait for arrived. (None of the officers responded to requests for comment.)

The internal investigators asked the officers to explain. “We kind of handle everything on our own,” Murphy offered. An internal investigator pressed Fleming about what had “situationally changed” and prompted the decision to “take him at that point.” Fleming said everything changed once his partner said Richards might have a gun. “I perceived that his intentions were lethal,” Fleming said. But his answers suggested that he hadn’t fully grasped Richards’ mental state. “Why would any sane person hide a fake gun?” Fleming asked.

When the investigators asked why the two officers did not broadcast that Richards was an “EDP” — or an emotionally disturbed person — with a knife, as protocol dictates, Murphy told them he and Fleming had handled people in crisis before. Asked why they made the decision to use force, Murphy simply said, “We wanted to, like, end it.”

While the Force Investigation Division ultimately concluded that the officers had been “justified” in shooting — because they were facing an “individual armed with a knife and an imitation firearm” — the investigators also said that Fleming and Murphy should still be punished. Richards, their September 2018 internal report noted, “was contained and posed no immediate threat of danger.” And the officers violated policy by not asking permission from their supervisor before they acted. The department’s full investigative record was first reported by the independent journalist Michael Hayes in his 2023 book, “The Secret Files.” The review recommended that the officers face disciplinary charges that could ultimately result in their firing.

But in New York, as in almost all cities in the United States, the police commissioner has absolute power over punishment. In March 2019, O’Neill, who had extolled the promise of body cameras just two years earlier, overruled his own investigators. He decided that neither Fleming nor Murphy would be punished for killing Richards. Instead, the commissioner docked them three vacation days for something else they did: stopping for pizza before responding to the call for the wellness check. (O’Neill did not respond to questions or requests for comment.)

It would be another three months before anyone outside the department would see the full footage. That June, a New York judge ruled that the “public is vested with an inherent right to know” and ordered the department to turn over the recordings to Lowenkron’s organization.

She received a package with a DVD a month later from the department. Bracing herself, she sat down to view it on her computer. The footage that the department publicly released cut off when the officers fired. Lowenkron now saw the aftermath: Richards collapsed to the floor, crumpled and bleeding in the same spot where he had been standing rigidly seconds before.

“He’s still alive,” Fleming said.

“Holy shit,” Murphy replied. “Just fucking cuff him.”

The officers then flipped over Richards, severely injured, so roughly that his head could be heard bouncing off the floor.

They searched around the room for the firearm they thought Richards had. Eventually, Fleming found a palm-size, silver-colored plastic toy gun. “It’s some fucking little thing,” he said. (The video does not show Richards holding the toy gun.) More than three minutes passed before anyone administered any type of aid to the dying man. It was an Emergency Services Unit specialist who retrieved medical equipment after hearing the shots.

Outside the apartment building, more video recorded other officers milling about. One told a colleague, “They were just hurling fucking shots.”

The NYPD initially withheld the footage of the aftermath of the Richards shooting. Below are clips from the videos that a state judge later ordered released. They contain graphic content.

As the officers move into Richards’ room moments after shooting him, Fleming observes, “He’s still alive.” Murphy is breathing heavily. “Holy shit,” he says.

Watch video ➜

The officers ask one another if they are all right as they mill around Richards’ injured body. He is handcuffed and flipped over so roughly his head can be heard bouncing heavily on the floor.

Watch video ➜

As more officers arrive outside Richards’ apartment building, one tells a colleague, “They were just hurling fucking shots.”

Watch video ➜

Lowenkron was shocked. Officers had shot a young man and roughly handled him as he bled to death. “The utter disrespect,” Lowenkron says. “It was a horror movie.”

New York Lawyers for the Public Interest would go on to share the footage with journalists. It would also use the footage in a webinar for mental health advocates in November 2020. “The point,” Lowenkron told me, “was to get more people engaged on this issue: transforming New York and this country’s response to people in crisis.”

But by then, for another man in distress, it was too late.

In April 2019, one month after O’Neill decided against punishing the officers for the Richards shooting, another officer shot and killed a man named Kawaski Trawick.

The circumstances were remarkably similar to those in the Richards case. Trawick was also a young Black man who lived in the Bronx and was experiencing a mental health crisis in his own apartment. He was also holding a knife when the police arrived. And he was also shot soon afterward. At the Civilian Complaint Review Board, Napolitano was immediately struck by the parallels: “I remember reading the headline on Trawick and thinking, ‘Didn’t I read this already?’”

This time, though, the victim’s family filed a complaint with the review board, providing an opening for civilian investigators to use body-worn-camera footage to make a case that the department and others couldn’t ignore.

But despite repeated requests over many months, the department wouldn’t share the footage — or any other records — with the review board, leaving the oversight agency effectively unable to begin its own investigation of the case. The refusal was in line with the department’s longstanding practice to withhold footage from the board until the department’s internal investigation was over, a process that often takes more than a year. Such delays can effectively torpedo the review board’s investigations: Under New York civil-service law, any disciplinary cases against police officers must be brought within 18 months of the incident.

In the Trawick case, the review board obtained the full body-camera video in January 2021 — more than a year and a half after the killing — and only after a state judge ordered the department to hand it over to Lowenkron’s organization, New York Lawyers for the Public Interest, which had sued for it. The judge determined that the department had been withholding the footage “in bad faith.”

What it showed was even more damning than what was captured in the Richards shooting. As the police entered his apartment, Trawick demanded to know, “Why are you in my home?” One officer, Herbert Davis, who was Black and more experienced, then tried to stop his white junior counterpart, Brendan Thompson, from using force. “We ain’t gonna tase him,” Davis said in the video.

Thompson didn’t listen. Instead, he fired his Taser at Trawick, sending roughly 50,000 volts pulsing through him. As Trawick started rushing toward the officers, Thompson lifted his gun and prepared to fire. “No, no — don’t, don’t, don’t, don’t, don’t,” Davis said, pushing his partner’s arm down. But Thompson fired four shots, hitting Trawick twice and killing him almost instantly, 112 seconds after they arrived at the apartment. (Davis and Thompson did not reply to requests for comment.)

There was also troubling footage of the aftermath of the shooting. Officers swarmed outside Trawick’s apartment. “Who’s injured?” a sergeant asked. Two officers replied in near unison: “Nobody. Just a perp.”

With all that in hand, the review board completed its investigation in June 2021. The agency, through one of the few powers it had gained over the years, can file and prosecute disciplinary cases against officers — which triggers a Police Department trial, after which a departmental judge sends a provisional decision to the police commissioner, who makes the final call.

This September, the police judge overseeing the Trawick case recommended that there should be no discipline. Her reason had nothing to do with the shooting itself; in fact, the judge wrote that she had “serious doubts” about the decisions of the officer who killed Trawick. But the review board, she said, had failed to file charges within the 18-month statute of limitations, as outlined under state law. In the end, the department’s refusal to give the footage to the review board had effectively run out the clock on any chance the officers would be punished.

“That should not be tolerated,” says Jeff Schlanger, the former deputy commissioner. “Both CCRB and NYPD are city agencies. This is something the mayor needs to resolve.”

In the wake of George Floyd’s murder in 2020, huge demonstrations for racial justice and against police brutality rolled across the country and the world. It was a global reckoning brought on by footage — the video, recorded by a teenager on her smartphone for more than eight minutes, showing Derek Chauvin ending Floyd’s life.

Napolitano and her team at the review board had collected data showing how footage could make a difference in New York too. Access to body-camera footage roughly doubled the likelihood that agency investigators would be able to decide a case on its merits rather than dismiss it as inconclusive. But the backlog was growing. That May, the board filed 212 requests with the Police Department for body-worn-camera footage — and the department sent only 33 responses. (While the pandemic slowed the work of all city agencies, the backlog predated it.)

“The withholding of footage stops investigations and prevents the CCRB from providing adequate and meaningful oversight of the NYPD,” an internal agency memo warned. “The situation for New York City oversight of the police has steadily grown worse during the duration of a BWC program intended primarily to aid oversight.”

We just said to police departments: ‘Here’s this tool. Figure out how you would like to use it’ It shouldn’t be a surprise that they’re going to use it in a way that most benefits them.

—Seth Stoughton, a former police officer who is now a law professor at the University of South Carolina

Napolitano campaigned internally for a law that would take away the department’s absolute control over footage and give the review board its own access. That November, she was let go, along with three other staff members who had sent pointed emails and memos about the department’s withholding of footage. The four filed a lawsuit claiming that their firing violated their First Amendment rights and received an undisclosed settlement. A review-board spokesperson wrote in an email that the agency has “publicly and repeatedly called on legislators to support the fight for direct access. No employee has ever been fired for supporting direct access to BWC footage.”

This spring, the City Council speaker, Adrienne Adams, and the New York City public advocate, Jumaane Williams, sponsored a bill that would give the review board direct access to footage so that it wouldn’t be beholden to the department for cooperation during investigations. “There are difficult split-second decisions that have to happen” in policing, Williams told me. “But if we’re not able to look at the same thing, if we have to take the word of the NYPD, that doesn’t make this conversation any easier.”

The Police Department has opposed the bill. A department official insisted at a City Council hearing in March that the department “does not fear transparency.” But the official argued that it would be an “insurmountable obstacle” to give the review board direct access while following state confidentiality laws. The bill has been stalled for months.

The city, meanwhile, paid out at least $121 million in settlements last year for lawsuits alleging misconduct by police officers — the highest total in five years.

With footage remaining in the control of the Police Department, body-worn cameras have made little difference to the public. This year, a federal court monitor wrote a scathing report about persistent problems with stop-and-frisk, the unconstitutional policing tactic that prompted Scheindlin to order the department to adopt body cameras a decade ago. The monitor found that contrary to Scheindlin’s expectations, police supervisors weren’t using footage to flag misconduct. In a sample of cases the monitor looked at, supervisors reviewing footage of stop-and-frisk encounters concluded that 100% of the cases they looked at were proper stops. The court monitor reviewed the same footage and found that 37% of the stops were unconstitutional.

“It was an experiment,” Scheindlin says, one that didn’t anticipate issues like control over footage. Scheindlin, who stepped down from the bench in 2016, says she now believes that the Police Department should no longer be the sole custodian of its own video. “That troubles me,” she says. “It should always be somebody independent.”

In interviews with a half-dozen former commanders and high-level officials, most of whom were involved in the body-camera program itself, they said that despite its public pronouncements, the department hasn’t committed to using footage for accountability. “Body cams are essential, if done right,” says a high-ranking commander who just retired and who spoke on the condition of anonymity because he still works in law enforcement. “They are a game changer.” He added, “If there’s a problem, you flag — and potentially there’s discipline. But that’s not happening in most cases.” Instead, he says, body cameras have become “an exercise in just work they have to do. It’s a culture thing.”

Rudy Hall has a particularly useful vantage point. He was part of the team that rolled out the body cameras, visiting police departments around the country to see how they were using the technology, and has gone on to work for the federal monitor overseeing the department’s compliance with Scheindlin’s now-decade-old order on stop-and-frisk. “I watch a lot of body-cam videos,” Hall told me. “I have absolutely seen supervisors approve problematic conduct.”

“Body-worn cameras have not been exploited the way they should be,” says Jeff Schlanger, the former deputy commissioner. “The way to true reform is through using body cams as an early-warning system, as a way to correct small mistakes before they become big mistakes. But there weren’t a lot of discussions about it. The NYPD needs to do a lot better.”

One of the most comprehensive studies of the use of body cameras, a 2019 meta-analysis led by researchers at George Mason University, recommended that police departments consider using footage the way sports teams use game tape, to regularly review and improve performance. That’s essentially what the New Orleans Police Department did after the U.S. Department of Justice put it under federal oversight about a decade ago in response to the police killings of several Black men and persistent police violence. Body cameras were a “critical engine for us to continuously evaluate performance,” says Danny Murphy, who ran a unit at the department overseeing compliance with the federal mandate.

Four auditors were hired to join the police force and comb through footage. They looked to make sure that officers were using their cameras and that supervisors were flagging any problematic behavior. “If officers know they’re being viewed, if supervisors know they’re being reviewed, it creates a pressure for accountability,” says Murphy, who left the department four years ago. A 2020 report from the city’s civilian oversight agency — which has direct access to footage — noted a reduction in both the use of force and citizen complaints, which the department attributed to “the use of the body-worn cameras and the increased scrutiny and oversight these cameras provide leadership.” The police in New Orleans also regularly and quickly release video from shootings and other major incidents. But in the end, it’s the police chief who has the final say on discipline.

During his tenure at the New York Police Department, Schlanger had, in fact, started a kind of internal oversight system similar to the one in New Orleans. Schlanger and other senior officials would meet with each of the department’s 77 precincts every six months and look at body-camera footage to identify problematic trends and officers. “It was CompStat for constitutional policing,” Schlanger says, referring to the department’s data-heavy program for tracking crime. “If we saw a precinct doing poorly, we’d work to help them. It made a difference.”

The department quietly ended the review program last year.

A civil suit on behalf of Miguel Richards’ estate was filed against the city in 2018. New York is seeking the dismissal of the case. A judge has been considering the request for two and a half years. “I want answers,” his mother told me, “and haven’t been able to get them.”

The three officers involved in the Richards shooting were honored in 2018 by the largest New York police union, the Police Benevolent Association, which gave them its Finest of the Finest award for “extremely brave and tactically sound action” in the Richards shooting, noting that “the officers had no choice but to open fire.”

The officers were later deposed in the lawsuit. One of them, Mark Fleming, said in his testimony in September 2020 that he had learned a lesson: that the Emergency Services Unit — whose help he told department investigators he didn’t need — is in fact better equipped and trained to deal with situations that involve people having a mental health crisis.

It’s not clear what, if any, lessons the department itself has taken in. Since Richards’ death in 2017, when cameras were widely rolled out, officers have killed at least 11 people in crisis. There is no evidence that officers have been punished in any of the cases.

Photographs of Miguel at the Richards home in Jamaica. “I want answers,” his mother says, “and haven’t been able to get them.” (Naila Ruechel for The New York Times)

On a Sunday morning in the Bronx this spring, there was another shooting. Santo de la Cruz called a city emergency line. His son, 42-year-old Raul de la Cruz, was in the middle of a schizophrenic episode and had posted a disturbing video on Facebook that morning. Wearing camouflage clothing and a hat with a patch of an Israeli flag, Raul complained about racist police officers. His father called 311, avoiding 911 because he was afraid of what would happen if the police showed up. “I thought they would send someone capable of dealing with a situation like that,” he says in Spanish. “Because I was calling for a sick person, not to send the police to shoot him up.” But it was the police who arrived, with body cameras rolling. And Raul was holding a knife.

The officers shot him 28 seconds after arriving. He was hospitalized for more than a month before being released, having lost a kidney and part of his liver. A department commander cited the body-camera footage when he gave a brief news conference the day of the shooting to describe what happened. “This situation was fast, volatile and dangerous,” he said. The officers’ “quick response saved at least one civilian and protected themselves.”

But the department has not released the footage or commented in the eight months since.

Lowenkron’s colleagues at New York Lawyers for the Public Interest have once again requested the video, so far to no avail. The department has also withheld the footage from the Civilian Complaint Review Board, per the practice of sharing records with the agency only after its own investigation is done.

On Dec. 5, weeks after we sent questions to the department about that practice, the department signed a memorandum of understanding with the board to send footage to it within 90 days of a request.

But for now, nobody outside the department knows exactly what happened in the de la Cruz shooting, including the family. They have not heard anything from the department. They want to see the footage.

Do you have a tip about policing or another subject? Eric Umansky can be reached by email at eric.umansky@propublica.org and on Signal and WhatsApp at 917-687-8406.

by Jodi S. Cohen

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

In 2020, the detention of a Michigan teenager for failing to do her homework drew widespread outrage: protests outside the facility where she was held and petitions calling for her release. More broadly, the case of the girl identified as Grace put scrutiny on a troubled system that allowed a 15-year-old to be locked up for months for a noncriminal offense.

The following year, Gov. Gretchen Whitmer appointed a task force to study the state’s juvenile justice system. It recommended changes to state law, policy and funding, many of which advocates had been calling for.

On Tuesday, more than three years after ProPublica highlighted Grace’s case, Michigan’s lieutenant governor signed bipartisan legislation intended to transform how the state handles young offenders.

The package of 19 bills signed by Lt. Gov. Garlin Gilchrist II aims to keep young people out of the court system and detention when they get in trouble and instead provide more funding for community-based help, such as family counseling and mental health treatment. Other reforms include eliminating most fines and fees for juvenile defendants and their families and providing state funding for attorneys to represent young people who want to appeal their cases but can’t afford legal help. (Gilchrist signed the bills because Whitmer was unavailable and criminal justice reform has been a key interest for the lieutenant governor.)

Grace’s mother attended the bill signing.

“It was emotional because I’m like, This is happening, it really is happening, and it is going to benefit so many youth,” she said.

Grace was 15 and the pandemic was just starting when she failed to do her online homework, a requirement of her probation the year before for fighting with her mother and stealing a cellphone, which was returned hours later. A judge sentenced her to a juvenile detention center in a Detroit suburb because of the violation.

A Michigan appeals court ordered her release about a month after ProPublica published its investigation. She has since graduated from high school and is in college.

Grace, who ProPublica has identified by her middle name to protect her identity, called the reforms “a victory for youth and a step toward breaking the pipelines and cycles.”

“I hope we can continue to learn from the youth of yesterday to better support, guide and understand the youth of the future,” she wrote in a text message.

Grace and her mother hug outside their home in suburban Detroit in 2020. (Cydni Elledge, special to ProPublica)

Jason Smith, executive director of the Michigan Center for Youth Justice, an advocacy group, said that Grace’s case spurred necessary change. Until then, Michigan leaders had been focused on reforming the adult criminal justice and child welfare systems, but juvenile justice had been less of a priority.

“It definitely was a catalyst for getting folks, especially at the state level, to take juvenile justice reform seriously,” Smith said. “This was an opportunity to really act and address some long-standing issues within the system.”

Many of the changes were recommended last year by the Michigan Task Force on Juvenile Justice Reform, chaired by Gilchrist, with members including judges, lawmakers, court officials and families that had experience in the system. The group spent a year digging into why Michigan incarcerates so many young people for noncriminal offenses and then suggested ways to reduce the number. The task force found that decisions about whether to detain a juvenile as well as access to services, such as mental health treatment, often depend on where you live.

Data obtained by the task force from 32 counties, representing about 55% of the juvenile population, determined that roughly 23% of cases referred to courts by prosecutors were for noncriminal offenses such as truancy, running away and incorrigibility. These “status offenses” are only punishable because the person is a minor. An additional 26% of cases were for low-level misdemeanor offenses. Nearly 12% involved children 12 and under.

The legislative changes will not eliminate the detention of children for technical violations of probation or for status offenses, even though that was recommended by the task force. Some states have outlawed that practice. According to 2017 federal data, Michigan held more young people for status offenses than 46 other states, a ProPublica investigation found. Nearly half of those juveniles were Black, and the majority were female.

Still, through changes in policy and funding, the bills aim to keep low-level offenses out of the courts altogether and, when young people are in court, to steer them toward community services rather than detention.

“Every system that does something other than prepare a young person to be successful is a system that desperately needs to be reformed,” Gilchrist, a Democrat, said at the bill signing in Detroit. “There are a lot of things that you can do to help a person besides lock them up. And so we need to have more options, we need to have more choices, and those choices need to be better supported. And this provides a pipeline and a pathway for more of those services to be available for more people in Michigan.”

One reform signed into law Tuesday requires that courts and law enforcement use screening tools to assess a young person’s risks and needs before deciding whether detention is the right option. The standardized assessments are designed to match youth with the most appropriate level of supervision; only some counties in Michigan currently use these tools.

The legislation also prioritizes state funding for community-based services — such as family counseling, mental health support and substance abuse treatment — over detention and residential placements.

Under the current system, the state’s Child Care Fund Unit reimburses counties 50% for juveniles diverted to community programs. The state will now instead pay 75% of those costs, but still cover only 50% of the cost of detention and longer-term residential placement. The change could encourage county courts to rely more on community service programs because they would get more of the cost reimbursed by the state.

State funding also could be used for what is known as “pre-arrest diversion,” which would allow law enforcement to connect children to services without them being arrested or ordered to court.

Another reform establishes an Office of the Child Advocate, which will be responsible for investigating complaints about juvenile justice facilities, including detention facilities. Until now, a similar office only was responsible for investigating complaints related to children in the welfare system.

Most of the laws take effect Oct. 1 to allow time for the state to provide the increased reimbursements to the counties for community services and for courts to adjust to the changes. The legislation establishing the Office of the Child Advocate is expected to take effect soon.

One bill that did not pass before the end of the legislative session would have mandated legal representation for young people in the criminal justice system who can’t afford it, and it would have required the state to pay for it. The law also would have provided training for attorneys and oversight to help ensure quality representation.

While a separate new law will provide access to attorneys for youth appealing their cases, there is currently no state funding for juvenile defense at the earlier stages, something that Grace’s mother said is crucial for a more just system.

“While there has been progress,” she said, “there is more progress to be done.”

by Audrey Dutton

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.

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.

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.

by Brett Murphy and Kirsten Berg

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

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.

by Cezary Podkul

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

A bipartisan group of six U.S. representatives has introduced a bill that would prohibit insurers and their intermediaries from levying fees on doctors for paying them electronically. The legislation comes in the wake of a ProPublica investigation that detailed the toll of such fees, which add up to billions of dollars that could be spent on care but are instead funneled to insurers and payment processors.

The charges are akin to having an employer deduct 1.5% to 5% to provide a paycheck electronically if an employee prefers to receive a payment directly into their bank account rather than via a paper check. Yet that’s the choice many insurers are increasingly forcing on doctors.

“We don’t tolerate paying fees to receive direct deposit of a paycheck, likewise, doctors and patients should not be forced to pay predatory fees on electronic payments on essential health services,” the bill’s lead sponsor, Republican Rep. Greg Murphy of North Carolina, said in a statement announcing the legislation. Murphy’s bill would effectively force the Centers for Medicare & Medicaid Services, the federal government’s chief regulator on health care payments, to prohibit the fees.

As it happens, that would bring the giant agency back to its original position. CMS prohibited fees for electronic funds transfers until it was lobbied by a payment processor called Zelis. The agency changed its position in 2018, then went even further in 2022, explicitly stating that such fees are not prohibited. A spokesperson for CMS said the agency does not comment on proposed legislation. Zelis did not reply to a request for comment on Murphy’s bill, but the company previously told ProPublica that its services remove “many of the obstacles that keep providers from efficiently initiating, receiving, and benefitting from electronic payments.”

CMS’s about-face was detailed in copious internal records meticulously collected by a New York City urologist, Dr. Alex Shteynshlyuger, who has made it his mission to fight the costly fees. His crusade now appears to have found a sympathetic ear in Congress: Like Shteynshlyuger, Murphy is a urologist, and he co-chairs the House GOP Doctors Caucus. Three Democrats and two Republicans thus far have signed on as co-sponsors of his bill.

The proposed legislation has the backing of the American Medical Association, whose policymaking body voted last month to adopt a new resolution opposing “growing and excessive” fees on electronic funds transfer payments. Shteynshlyuger, who has spent six years trying to convince CMS to ban the fees, introduced a proposal at New York state’s medical society that then made its way to the AMA. He said of the new federal bill: “I’m happy that the legislators got involved.”

Administrators at small medical clinics are hoping the bill will bring them relief from the fees, which are “doing nothing for us but costing us money,” said Rebecca Hamilton, who manages an arthritis and rheumatology clinic in Wichita, Kansas.

Often, it’s independent clinics like Hamilton’s that suffer the most from such fees, since medical practices collect the vast majority of their revenues through EFT payments, according to the Medical Group Management Association. The winners are the recipients of the fees: large insurers and payment processors like Zelis.

One form of electronic fee is not addressed by Murphy’s bill: charges for use of so-called virtual credit cards, which Shteynshlyuger has also been campaigning against. Virtual credit cards are temporary card numbers that are typically used for one payment. Fees for VCC use run as high as 5% versus a typical 2.5% for other kinds of electronic payments.

ProPublica’s investigation showed how Matthew Albright, a lobbyist for Zelis, used a combination of cajoling, argument and the threat of litigation to get CMS to withdraw a 2017 notice prohibiting fees for electronic payment. CMS had posted the notice, which was based on a federal rule from 2000, on its website after hearing complaints from doctors. Internal CMS emails detailed how Albright repeatedly demanded that CMS withdraw and revise the notice, and when CMS ultimately refused, a law firm representing Zelis threatened to sue the agency. Within days, CMS removed the notice. It later stated that fees are allowed.

CMS previously told ProPublica that it reversed its position because it concluded that it had no legal authority to “flat-out prohibit fees.”

Albright, like CMS, has changed his public position on the fees. Before he joined Zelis, Albright worked for the federal agency, where he wrote the rules implementing electronic health care payments. Shortly after his time at CMS, at a 2015 conference for health care business managers in Las Vegas, Albright expressed unequivocal opposition to fees for electronic payments. When Albright outlined the agency’s rules, audio of the event shows, the mere mention of virtual credit cards prompted some members of the audience to cry, “Evil!” Albright asked if that sentiment was unanimous, prompting a wave of yeses.

Doctors Shouldn’t Have to Pay to Get Paid

Before he became an industry lobbyist, Matthew Albright expressed opposition to electronic payment fees at a conference in Las Vegas in 2015.

Laughter ensued, and Albright, who has a master’s degree in divinity, joked that he was preaching to the choir. His sermon? “What other industry does not get paid for the services they’re doing, and when they do get paid, they have to pay for getting paid? What other industry, right? It’s ridiculous!”

Reached by telephone for comment, Albright said, “I can’t speak to you.”

by Annie Waldman

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

Vascular surgeon Dr. Caitlin Hicks recalls the first time, about a decade ago, that a patient came to her with a lower leg mottled with purple and starting to decay. She searched for a pulse in the damaged limb, but blood had stopped flowing into it.

The patient had previously undergone an invasive vascular procedure, using devices designed to clear out clogged arteries. But when Hicks questioned the patient about the symptoms that had led them to initially seek treatment, they seemed mild or nonexistent.

Then Hicks saw another similar patient, and then another. In some cases, the only solution was amputation.

Over time, she began to worry if the patients landing on her operating table were a harbinger of something more ominous: doctors performing lucrative procedures on patients who might not have needed them.

In clinic offices and outpatient surgical centers, doctors were inserting into leg arteries catheters affixed with lasers or blades to pulverize fatty deposits from vessel walls. The procedures, called atherectomies, carried risks — of infection or the errant nick from a blade — that were perhaps worth the gamble for patients who could lose their legs from poor circulation. But some of the patients Hicks was treating had not initially been that sick.

“A lot of them would tell you, ‘Well, the doctor said I had a blockage in my artery,’” she said, “but if you asked them about symptoms, they didn’t actually have any.”

So Hicks, an associate professor of surgery at Johns Hopkins University School of Medicine, and a team of academic physicians decided to do what regulators and insurers had not. They began years of groundbreaking, peer-reviewed research that revealed that some doctors appeared to be overusing atherectomy procedures, performing them on high numbers of patients who may not have needed them.

They built on studies that showed aggressive, invasive treatments made far less sense for patients with milder symptoms, like leg pain while walking, which is often caused by clogged arteries obstructed with plaque. The majority of these patients are unlikely to develop severe vascular disease, and they can often be treated with less invasive therapies like medication and exercise. While most doctors follow best practices, many have continued to use aggressive interventions, ProPublica found, often warning patients that without them, they could lose their limbs. Instead, research has shown, the procedures may be associated with a higher risk of amputation.

Hicks and her fellow researchers didn’t publicly reveal the outlier doctors, but four years ago, they disclosed their names to the Centers for Medicare and Medicaid Services, encouraging the government insurers to examine their own data and crack down on abuse. They also sent a list to the Society for Vascular Surgery, where senior medical society members and leaders in the field believed the time had come for tighter standards.

And then Hicks and her colleagues waited. Surely their careful, methodical and confidential evidence would prompt change. Instead, what they got was an at-times scalding wave of blowback.

Today, atherectomies remain unchecked, not only because regulators and insurers haven’t done enough to rein them in, ProPublica’s reporting has found, but because doing them remains easy and profitable. Since 2013, the number of atherectomies has doubled and payments to doctors have nearly tripled, totaling about half a billion dollars annually as of 2021, according the most recent year of Medicare data. Physicians can charge Medicare tens of thousands of dollars for multiple procedures conducted in a single office visit.

And the government’s own data shows it continues to pay individual providers millions of dollars a year to perform the procedures, including on patients with only milder symptoms, with little pushback and few rules.

In response to questions, CMS told ProPublica that it examines its billing data for outliers, taking action when it identifies problems by denying claims, suspending payments or referring questionable providers to law enforcement.

But the story of Hicks and her colleagues illustrates the challenges of highlighting potentially dangerous practices and effecting change, especially when physicians’ livelihoods are at stake.

What the researchers hadn’t bargained on was a vocal contingent of doctors willing to fight for their freedom to perform the vascular procedures as they saw fit in their private practices. While not all were outliers, many spent years attacking the overuse studies and the researchers behind them and wielding influence to mute reforms.

Nowhere was this opposition more palpable than this past May, at the annual meeting for the Outpatient Endovascular and Interventional Society, a group of doctors who treat vascular disease outside of hospitals and often in their own private practices. Among glass cases in which atherectomy catheters gleamed like luxury jewelry, hundreds of doctors convened at Walt Disney World’s Coronado Springs resort to learn how to bolster their businesses.

In one presentation, Dr. Sandeep Rao, an interventional radiologist from El Paso, Texas, flicked through a presentation on vascular procedure metrics. “That clinic patient, how well are you in getting to them on the table? And eventually, once you get them on the table, how well you’re converting them into the codes that you can bill for them?” Rao asked the room. “All of a sudden, if that patient doesn’t show up, now again, and that patient just goes, ‘I don’t want any more procedures,’ now that’s maybe something that you may not be able to bill for. So when I have a patient captured and captive on my table, I try to maximize how much I’m able to get.”

(Rao later told ProPublica his comments were focused on patient safety: He wanted to do every procedure necessary at once so that a patient didn’t have to return for a second set of procedures, risking complications.)

Protecting their practices — both from regulators and critics — was a persistent theme. No physician was perhaps as bold as interventional radiologist Dr. Alex Dabrowiecki of Oregon, who provocatively brandished a slide listing the recent academic articles from Hicks on atherectomy overuse. Stamped at the top in bold letters was the word “Fratricide.”

“There are some academic institutions who find [office-based laboratories] a threat or find big issues with how we are practicing,” he said. (Dabrowiecki later shared with ProPublica that his slide was meant as “tongue-in-cheek.”)

One of Dr. Alex Dabrowiecki’s slides at the annual meeting for the Outpatient Endovascular and Interventional Society. He later said that his slide was meant as “tongue-in-cheek.” (Obtained by ProPublica)

Vascular surgeon Dr. Robert Tahara, who leads the society for outpatient physicians, told ProPublica in an email that his members feel attacked by the research on procedure overuse. “I and many others simply but vociferously take issue with the portrayal that [office-based laboratory] docs are only using atherectomy as a revenue tool,” he said, noting that the Medicare data, used by Hicks and others, has many limitations that “precludes the ability to draw any meaningful conclusions.” Tahara added that terminology used by Rao at the conference was “ill crafted, not well conveyed and does not reflect the OEIS thinking.”

Other private practice doctors have accused Hicks of weaponizing ivory tower research and have vilified her as an “atherectomy nazi.” Some physicians have critiqued the focus on more milder vascular disease, which can have a range of symptoms. Last August, after she published an opinion piece in MedPage Today, which showed that many of her critics are performing atherectomies in the majority of their cases, doctors called on the Society for Vascular Surgery to end her “reign of terror,” threatening a mass exodus if the group did not somehow stop her from continuing her research.

“She will destroy the Society if she is not reined in,” wrote vascular surgeon Dr. Patrick Ryan, founder of the Nashville Vascular and Vein Institute, in a private society discussion board post that was shared with ProPublica, adding that her “abuse of claims data” made private practice doctors a target for regulators. The society later took the post down, citing “personal attacks that were clear violations,” society officials told ProPublica.

“The only result of her work that I have seen is promoting disunion within the [society],” Ryan later told ProPublica in an email, “making me and perhaps others angry that the life and limb-saving work we do every day is being cast as a money grab.”

Ryan, Tahara, Rao and Dabrowiecki did not stand out in a ProPublica analysis of possible atherectomy overuse.

Hicks bristled at the hostility but said her critics misunderstand her motivations.

“I’m just trying to talk about doing the best care possible for patients,” she said. “I’m not trying to suggest that a technology or a practice pattern is evil.”

Outpatient clinics can be an effective place to treat patients and atherectomy procedures are useful in some cases, Hicks said, but she reiterated that some doctors “are doing way too many of these interventions and hastening the worsening of disease in many patients.”

Hicks during a surgery. “I’m just trying to talk about doing the best care possible for patients,” she said. “I’m not trying to suggest that a technology or a practice pattern is evil.” (Rosem Morton for ProPublica)

Taking researchers’ mounting concerns of possible patient harm into account, the Society for Vascular Surgery tasked a group in 2018 to develop “appropriate use criteria” to guide doctors on how to treat their patients; these standards are also often used by insurers and regulators to decide which procedures should be covered and which deserve greater scrutiny.

The group determined that patients with milder disease should first be treated with exercise therapy and that invasive procedures should be reserved for those with severe lifestyle-limiting symptoms. In some circumstances, the group concluded, invasive procedures were flat-out “inappropriate.”

But before the standards could be published, the group faced familiar pushback. Some society members attacked the use of the word “inappropriate” to describe some procedures conducted on patients, urging the society to soften the language of the criteria.

“I have no doubt that the publication of this document will result in a huge backlash,” an unnamed society member reportedly said during an internal feedback process. “It will reinforce the perception that the society is trying to rein in the poorly informed, unwashed masses in the community, and protect patients from profit driven surgeons doing unnecessary procedures on their unwitting victims.”

Nearly all 23 authors of the criteria — many of them veteran, highly respected surgeons — wrote to society leadership in February 2022 to defend their process and its terminology, according to an internal letter that was leaked to ProPublica.

“The primary reason to retain the terminology was that the panelists, in fact, felt very strongly that there were certain scenarios that should be deemed as inappropriate,” they wrote. “Simply changing the terms at this point from ‘inappropriate’ to ‘rarely appropriate’ would not only violate the scientific integrity of the project, but [would] also be disrespectful to the extensive work invested by the panelists.”

But two months later, when the society published the criteria, it removed the terms “appropriate” and “inappropriate,” saying that the words have “different and often highly charged social connotations in the 21st century.” They replaced them with the more convoluted jargon “benefit outweighs risk (B>R)” and “risk outweighs benefit (R>B).”

Dr. Joseph Mills, the current president of the Society for Vascular Surgery, insisted that the terminology change didn’t undermine the project’s integrity. “We didn’t change the methodology, we didn’t change the message, we still published it,” he said. Mills, who was one of the authors of the criteria, said he recognizes that overuse is an issue, and that the society would not stop Hicks from doing her research. “We don’t want her to stop doing her work,” he said. “Our true north is always patients first and always try to stick with the science when there is science. I think we’ve been pretty consistent with that.”

But several physicians, including some authors of the criteria, told ProPublica that they felt leadership had caved to the complaints of a vocal minority and made the criteria more vague.

Dr. Rita Redberg, the former chief editor of JAMA Internal Medicine and a cardiologist who has studied vascular disease standards, said such terminology changes can have implications for patient care. “It just leaves a lot more wiggle room and room for interpretation and confusion,” she said. “It’s important to be accurate and scientifically correct. Certainly those kinds of changes for non-evidence based reasons raise a lot of concern.”

Just last month, the European Society for Vascular Surgery published its own practice guidelines, recommending conservative care for most patients with milder symptoms. In contrast to guidance in the United States, it explicitly discouraged routine atherectomy use for patients with milder symptoms, citing the procedure’s “lack of superiority” compared with other treatments, in terms of efficacy and safety.

Some American medical leaders have begun to doubt whether their societies have the capacity to truly address the outliers in their ranks. After former Society for Vascular Surgery president Dr. Kim Hodgson used his platform to call out procedure overuse two years ago, he said in response he was removed from the leadership of a society quality improvement program and projects he had lobbied for to improve care, including an initiative to educate physicians on whether they are outliers, were modified or thwarted.

“I think they have kowtowed to the outliers,” he told ProPublica. “People don’t like to get screamed, hollered and yelled at so they often will appease that group.”

Mills, the current society president, said that Hodgson was not removed from the quality improvement program because of his stance on atherectomies, but because he had retired from practicing surgery and officials wanted a leader who could work more collaboratively with all perspectives. “It wasn’t done to cave in to certain subgroups,” Mills said.

The outlier education initiative that Hodgson lobbied for may still be implemented, said Ken Slaw, the society’s executive director, but so far the society has implemented more voluntary improvement programs. “We could try to make up something like a report card and send it to surgeons and say this is where you lie on the curve of use,” Mills said. “The problem with that is that it makes us a police force.”

Despite the pushback, Hodgson, like Hicks, has not backed down. Standing before dozens of physicians at a conference last month, Hodgson once again appealed to his colleagues that, in the absence of bold society and regulatory action, the onus of protecting patients fell on them all individually.

“We all know who these people are,” he told the doctors. “If you don’t want to be part of the problem, you need to also recognize that part of the problem is the silence.”

Do You Have Experience With Peripheral Artery Disease? Have You Had a Procedure on Your Leg? Tell Us About It.

by Annie Waldman, ProPublica, with data analysis by Alma Trotter and Fred Trotter, CareSet

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

More than 6.5 million Americans have peripheral artery disease, a condition in which arteries are obstructed, restricting blood flow, most often in the legs. The first sign is often leg pain during activity, also known as claudication. While most treatments are safe, in recent years, experts have warned that some doctors may be subjecting patients to invasive procedures too early in their disease progression, needlessly exposing them to risks of complications, including amputation and even death.

Over the past year, ProPublica has investigated these vascular treatments, and we found some doctors are earning millions of dollars conducting a questionable number of procedures. For treatments in outpatient clinics, federal insurers, like Medicare, pay generous reimbursements to doctors, who can charge tens of thousands of dollars for procedures done in a single office visit.

Treatments include widening the arteries with stents and balloons and clearing plaque from vessel walls with a laser or bladed catheter, also known as an atherectomy. Despite minimal evidence to support the treatment’s benefits compared with less expensive alternatives, atherectomies have surged in recent years, researchers have found, with hundreds of outlier doctors performing the procedure in a majority of their patient cases.

ProPublica found that, from 2017 through 2021, about 200 doctors accounted for more than half of atherectomy procedures and Medicare payments, totaling nearly $1.5 billion, according to public federal data. Many of these physicians work in outpatient clinics.

To better understand how doctors are using the procedure, ProPublica sought to analyze Medicare data for patients who underwent atherectomy treatments, working with the data journalism team at CareSet, a health analytics group that exists to transform Medicare data into insights for better patient care.

For our analysis, we set out to understand how often doctors were performing atherectomy procedures for patients in the early stages of disease. We relied on Medicare fee-for-service claims data and examined atherectomy procedures conducted over the past four years, from 2019 through 2022, limiting our analysis to the first-time atherectomy procedures that patients underwent during this time. We focused on initial atherectomy procedures to better understand whether interventions were occuring in the early stages of vascular disease, before possible progression of the illness. For each doctor, we calculated what percentage of their patients receiving a first-time atherectomy appeared to have had only more mild vascular disease, based on a diagnosis of claudication.

What Data Was Used for the Analysis?

When a patient is treated by a physician, medical details on their diagnoses and procedures are submitted to insurers for reimbursement payments. The Centers for Medicare and Medicaid Services collect this data for patients covered by its federal insurance and share it with the public and researchers, removing names and other private information to protect patient privacy.

To examine doctor reimbursement for atherectomy procedures, ProPublica relied on Medicare’s provider use and payment dataset, which contains details on the services and procedures provided to Medicare beneficiaries by physicians and other health care professionals. This public data let us calculate how much Medicare paid each provider in reimbursement per type of procedure. We looked at five years of data, from 2017 through 2021, the most recent year available.

But the public reimbursement data does not include detailed information on provider behavior or patient diagnosis, so ProPublica partnered with CareSet, which has special access to Medicare claims data. The data included carrier, institutional inpatient and institutional outpatient claims. We used codes from the Current Procedural Terminology system, devised by the American Medical Association and used by Medicare, and we identified patients who underwent a first-time atherectomy procedure. We limited our analysis to patients who had procedures from Jan. 1, 2019, through Dec. 31, 2022.

We classified patients into two categories: those with more severe chronic disease, who had a diagnosis of chronic limb-threatening ischemia; and those who appeared to have milder vascular disease, based on a diagnosis of claudication. Patients with claudication were defined by the International Classification of Diseases code families I70.20, I70.21 and I73.9, a set of diagnosis codes used by other researchers in peer-reviewed studies. We omitted patients who underwent an atherectomy procedure before their first treatment in our study period. To do this, we looked back at the data 12 months before the start of our study period. We also excluded patients with a diagnosis of acute limb ischemia, which is often linked to an emergency event. We included patients who initially had a claudication diagnosis at the time of their first atherectomy procedure but whose disease may have advanced to a more severe stage during our study period, because of concerns that the interventions may have contributed to disease progression.

We pooled the patient-level data by doctor to calculate what percentage of each physician’s patients underwent a first-time atherectomy for claudication versus chronic limb-threatening ischemia.

Why Did We Focus on Patients With Claudication?

We wanted to know whether doctors who conduct atherectomies are using the procedure excessively on patients who appear to have milder vascular disease.

For many patients with peripheral artery disease, an initial symptom is pain when walking or exercising, which is also known as intermittent claudication. The discomfort often arises from limited oxygen in the leg muscles due to the narrowing of arteries, which can progressively become obstructed with plaque. According to experts, the majority of patients who experience claudication will not develop severe vascular disease, like chronic limb-threatening ischemia. While endovascular interventions are recognized by experts as appropriate for severe disease, best practices recommend that milder symptoms initially be managed by noninvasive care, which can slow or even reverse symptoms. These treatments may include exercise, diet changes, quitting smoking and medication.

The medical guidelines of several professional societies encourage starting with these noninvasive approaches. Last year, the Society for Vascular Surgery published appropriate use criteria for patients with claudication and recommended first-line treatments of exercise before resorting to interventions. It also advised against conducting procedures on arteries below the knee, emphasizing that interventions in these vessels for patients with claudication are of “unclear benefit and could be harmful.”

Just last month, the European Society for Vascular Surgery published its clinical practice guidelines on treating patients with asymptomatic peripheral artery disease and intermittent claudication, recommending conservative care for most of these patients. It also explicitly discouraged the routine use of atherectomy for patients with disabling claudication “due to the lack of superiority of atherectomy over conventional endovascular therapies in terms of efficacy and safety endpoints.”

Numerous studies have questioned the efficacy of atherectomy over the years, including from Cochrane, a widely respected network of experts that conducts systematic reviews of research. A Cochrane review found atherectomies are not necessarily more effective than alternative procedures. The studies on the effectiveness of atherectomy, it found, were small and had inconsistent results, and their methodologies had a “high risk of bias.”

While most doctors follow best practices, ProPublica has found that some opt for overly aggressive invasive treatments in early stages of vascular disease, which research has found may be associated with an increased risk of complications. In response to recent research, interviews with doctors and patients, and the recent medical guidelines and criteria, we sought to better understand doctor behavior in treating patients with claudication.

How Did We Develop Our Methodology?

Over the past year, our reporting has relied on numerous interviews with researchers, doctors and medical experts from various specialties, including but not limited to vascular surgery, interventional radiology and interventional cardiology. These conversations with experts have helped inform our analysis process. We also used several studies as a starting point for our own methodology, including some from Dr. Caitlin Hicks, an associate professor of surgery at Johns Hopkins University School of Medicine and a leading researcher on procedure overuse.

One of the principal studies we relied on was “Use of Atherectomy during Index Peripheral Vascular Interventions,” which examined first-time vascular procedures, comparing atherectomies with other endovascular interventions, such as angioplasty and stenting. The researchers found substantial variation in how doctors use atherectomies as first-time procedures, with some using the treatment sparingly and others deploying it in a majority of their cases. High rates of atherectomy were more strongly associated with patients who had claudication and for procedures conducted in outpatient settings.

Another study that informed our process was “Overuse of early peripheral vascular interventions for claudication,” which sought to understand whether physicians were adhering to best practices for treating claudication, which recommend noninvasive approaches for patients in the early stages of the disease. Most doctors follow the practice guidelines, but researchers found a group of outlier physicians with high rates of intervention in patients newly diagnosed with claudication. Doctors who worked in high-volume outpatient settings also tended to have a higher rate of early intervention, which “supports the concern that some procedures for claudication may be overused for financial gain,” the authors concluded.

We also were informed by “Practice Patterns of Vascular Surgery’s ‘1%,’” which examined the use of procedures by vascular surgeons who accounted for the top 1% of all Medicare payments. The analysis found that of the $589 million in Medicare payments that went to vascular surgeons in 2016, the top 1% of that workforce — 31 doctors — received $91 million, or 15% of all payments. These outliers also accounted for 49% of the atherectomy payments to vascular surgeons. “The dramatic differences in practice patterns raise concern for potential overuse of specific, highly reimbursed services,” the researchers wrote.

While these studies, and several others, helped inform our process, our analysis with CareSet was independently conducted and did not rely on data of other researchers. Compared with the other studies, our analysis looked at a longer time frame, four years of data, and examined a different metric, percentage of a physician’s patients with claudication at the point of their initial atherectomy procedure.

What Are Our Top-Line Findings?

Relying on public Medicare data, we found that a small fraction of physicians conducting atherectomies account for a majority of the nation’s procedures and Medicare reimbursement payments. About 200 doctors were responsible for conducting nearly 200,000 atherectomies over five years.

Even though these providers only make up about a tenth of all doctors conducting the procedure, they accounted for 53% of all atherectomies in the country. Over five years, they received nearly $1.5 billion in reimbursements for them, representing almost two-thirds of all Medicare payments for the procedures. These physicians may be conducting more procedures and receiving more payments from commercial insurance and Medicaid, as our analysis only looked at Medicare data.

At the top of the list are three physicians from the greater Los Angeles area: Dr. Amiel Moshfegh with $45.8 million in Medicare reimbursement, Dr. Harold Tabaie with $24.8 million and Dr. Malwinder Singha with $23.8 million.

Doctors With Highest Medicare Reimbursement for Atherectomies From 2017 to 2021 Note: We defined an atherectomy procedure with Current Procedural Terminology codes 37225, 37227, 37229, 37231, 37233 and 37235. For each year of data, if a provider had fewer than 11 patients, they were not included in the dataset.

Relying on more detailed Medicare fee-for-service claims data analysis provided by CareSet, we calculated the number of patients who underwent a first-time atherectomy procedure during our study period when they appeared to have only had milder vascular disease based on a diagnosis of claudication.

Between 2019 through 2022, our analysis found that there were at least 121,000 patients who had first-time atherectomy procedures. Nearly 30,000 of these patients appeared to have more mild vascular disease, based on a diagnosis of claudication, according to the data, amounting to about 24.5%, or nearly 1 in 4 patients.

For about 170 doctors, half or more of their first-time atherectomy patients had only claudication as a diagnosis. And for nearly 780 doctors, a quarter or more of their first-time atherectomy patients had only claudication as a diagnosis. For more than 5,000 doctors, the number of claudication patients that had an atherectomy was too low to be reported, with fewer than 11 patients over four years.

Among high users of atherectomy, who conducted 200 or more procedures over four years, on average, about 15% of their patients appeared to have had more mild vascular disease based on a diagnosis of claudication.

Doctors Who Treated Most First-Time Atherectomy Patients With Milder Vascular Disease From 2019 to 2022 Note: We defined milder vascular disease based on a diagnosis of claudication at the time of the initial atherectomy procedure within our study period. Doctors Who Treated Largest Percentage of First-Time Atherectomy Patients With Milder Vascular Disease From 2019 to 2022 Note: We excluded physicians who conducted first-time atherectomies on fewer than 50 patients on average per year to focus on practitioners who have a higher use of the procedure over time. We defined milder vascular disease based on a diagnosis of claudication at the time of the initial atherectomy procedure within our study period.

While the data enables us to identify doctors that appear to have outlier treatment patterns, it does not allow us to determine the precise clinical reason why the doctors differ from peers or their motivation for conducting more procedures than other physicians. But researchers and experts told ProPublica that given the financial incentives to conduct atherectomy procedures in outpatient facilities, these patterns should raise alarms.

What Are the Limitations of Our Analysis?

Our analysis has some limitations. It relied on Medicare fee-for-service claims data, which is submitted by providers for financial purposes. While the data is supposed to be accurate, we cannot account for errors or inaccuracies — in particular, related to procedure or diagnosis codes — in what providers submit to Medicare. Despite the fact that electronic health record data is a richer resource, we did not use it as it’s not available at the scale required to conduct this study.

Medicare claims data only covers beneficiaries of the federal insurance program, and therefore we cannot make direct conclusions about beneficiaries with other insurance coverage. For patients with other insurance coverage, treatment patterns may look different. That said, it is estimated that more than 98% of American adults over the age of 65 are enrolled in Medicare, and about half of them appear in the fee-for-service data, which makes it one of the largest pools of health care information in the world.

Because Medicare claims data was submitted for billing purposes, it does not have complete clinical information on patient symptoms or disease severity. We do not have detailed information about arterial lesions, such as their exact locations, size or degree of occlusion, or clinical imaging, both of which might factor into a patient’s treatment plan. We also do not always know whether medication, exercise therapy or other less-invasive treatments were attempted before an invasive procedure, and if so, for how long. These kinds of programs are often not covered or tracked as part of the financial transaction.

Dr. Robert Tahara, president of the Outpatient Endovascular and Interventional Society, which represents doctors who treat vascular disease outside of hospitals and often in their own private practices, said Medicare’s claims data is not detailed enough to draw conclusions about doctor behavior. Tahara, who was not an outlier in our data, said that the data does not provide information on the stage of patients' disease, their disease progression or whether medical therapy didn’t work for them — details that could provide a greater understanding of why a treatment was chosen. “For example, the patient’s claudication could be worsening and coming close to critical limb ischemia, but the claim could still include a code for intermittent claudication,” he wrote in an email.

We relied on a 12-month lookback to determine whether the atherectomy was a first-time procedure. If a patient received an atherectomy before 2018, it is possible that we have identified a follow-up procedure rather than their first-time intervention. However, this should not impact our findings of whether they received an atherectomy when their recent diagnosis was for claudication.

As part of the data use agreement, we are unable to display data for doctors with fewer than 11 patients because of privacy concerns.

How Did Doctors React to Our Data Analysis?

Several experts and doctors called our findings concerning. Dr. Marty Makary, a professor of surgery and health care quality researcher at Johns Hopkins University School of Medicine, has used similar Medicare claims data to research outlier practice patterns and said that our analysis reinforces his own findings. “It is validating concerns on the grounds that some physicians are responding to a perverse financial incentive,” he said. “The data suggest they may be doing procedures on people who don’t need them.”

Makary leads Global Appropriateness Measures, a consortium of physicians who use clinical wisdom and health care data to detect outlier patterns and discourage overuse. Outlier analyses are critical for improving health care, he said, as most physicians change the way they practice when they learn that they stand out. “Our general principle is that 83% of outliers reduce their pattern of overuse after they see where they stand on the bell curve,” he said.

But several private practice doctors, including some of the outlier physicians we identified in our analysis, rebuffed our analysis or took issue with the use of Medicare claims data.

ProPublica reached out to every doctor named in our story through multiple emails and phone calls, providing questions to the physicians, their clinics, hospitals or lawyers. The following doctors, their offices or lawyers did not respond to ProPublica’s questions for this story at the time of publication: David Burkart, Ian Cawich, Thomas P. Davis, Pablo Guala, Omar Haqqani, Syed Hussain, Juan Kurdi, Moinakhtar Lala, James McGuckin, Jim Melton, Rajiv Nagesetty, Daniel Simon, Pushpinder Sivia and Harold Tabaie. Dr. Bhaskar Purushottam and Monument Health, where he works, both declined to comment. Riverside Healthcare in Illinois, where Hussain has worked since September 2022, declined to comment on the doctor’s practice. Kurdi’s lawyer declined to comment.

Florida vascular surgeon Dr. Joseph Ricotta, the national medical director of vascular surgery and endovascular therapy at Tenet Healthcare, said he rarely intervenes on patients with claudication, unless they have severe lesions. “The overwhelming majority of claudicants obviously we don’t intervene on,” he said. “The majority are managed with medical therapy.” Medicare claims data does not provide detail on the severity of arterial lesions, he said.

Maryland vascular surgeon Dr. Samer Saiedy, who was an outlier in the data, echoed these concerns and said the data doesn’t include enough details to provide a full picture of why he may have treated a patient with an invasive procedure. At his practice, patients are only given the option of invasive procedures, he said, if they have severe pain and have already tried less aggressive approaches first.

“If you look at atherectomy only, and you narrow down, yes, I’ll be an outlier because I do a lot of claudicants for severe symptoms after we do the medical treatment,” he said. “They cannot walk through the pain, they’re already on blood thinners, they’re already on this and already on this. We’re going to do something.”

Tennessee physician Dr. Prateek Gupta also took issue with our analysis, which he called “incomplete,” stating in an email that he is not “an outlier when you analyze all of the necessary factors.” Our analysis, he said, attempts “to allege medically unnecessary treatment based upon one factor” and that “a professional medical opinion about medical necessity is based upon multiple factors, indicia of disease, prognosis, anticipated patient outcome, alternative treatment options, patient preference and others.” Claudication can sometimes be debilitating for patients, he said. “As a practice with protocols, we manage most claudicants conservatively with medical therapy,” he said. “Patients with severe claudication get offered endovascular or open surgical procedures based on their comorbidities and preference if medical therapy fails.”

Jessica Johnson, the chief operating officer of South Dakota’s Vascular & Interventional Specialists, where Dr. Chad Laurich works, did not respond to specific questions regarding ProPublica’s analysis but said that the vascular surgeon had an “unwavering dedication to advancing vascular surgery while prioritizing patient well-being.” The community has “experienced improved wound healing, saved limbs, improved quality of life and many lives saved,” she said. Laurich did not directly respond to ProPublica’s questions.

Cherlynn Hecker, the clinical director at Dr. Christopher LeCroy’s practice, said that he doesn’t conduct procedures on patients with mild disease unless they have lifestyle limiting pain and have already tried exercise and medication therapy first. “This endovascular work is preventing patients having bypasses or amputation,” she said. LeCroy did not directly respond to ProPublica’s emailed questions.

Some doctors said billing errors explained their high rates of intervention on claudication patients. Dr. Colbert Perez said that his practice, Caprock Cardiovascular Center & Cath Lab in Lubbock, Texas, had been marking their patients with incorrect diagnosis codes in Medicare billing claims for several years, which made its patient population appear to have milder disease. Perez said that he rarely intervenes on patients with mild disease and that his practice, which outsources its coding and billing to another company, was looking into the billing issue and was in contact with CMS for corrections and changes. Billing errors can occur, but CMS mandates that physicians “are responsible for ensuring that claims submitted” under their name are “true and correct.”

Some physicians said that Medicare reimbursement data is misleading. Saiedy, who has made about $23.5 million from Medicare in reimbursements for atherectomy procedures over five years, according to federal data, said the payments cover all clinic expenses and are not going to him directly. “You have to look at the overhead of the practice,” he said. “That includes nurses, anesthesia, leases for the equipment, rent.”

California interventional radiologist, Dr. Malwinder Singha, who received $23.8 million in Medicare reimbursements for atherectomy procedures over five years according to federal data, echoed Saiedy’s concerns. “It is devoted to running of the [office-based laboratory] and only a tiny fraction is earned by the operator,” he wrote in an email to ProPublica. “I have to pay my employees and expenses for all the supplies (wires, balloons, stents, atherectomy catheters, etc.), imaging equipment, [electronic medical records], facilities rent, etc.”

Singha also took issue with the use of claims data to identify clinical outliers. “It does not take into account the patient population I see and the severity of their disease,” he said. He added that outpatient facilities are safe, and their patients are satisfied with their care. “What I and my colleagues do is safe and effective,” he said. “There are hundreds of office-based labs who treat thousands and thousands of patients. The adverse event rate is minuscule.”

Dr. Amiel Moshfegh, who received over $45 million in Medicare reimbursements for atherectomy procedures over five years according to Medicare data — more than any other doctor in the country — said his atherectomy statistics reflect “the quality outcomes generated for patients and the confidence of referral sources in directing patients” to his practice. He did not answer ProPublica’s questions on his treatment of patients with claudication.

Interventional radiologist Dr. James McGuckin, who received $17.2 million in Medicare reimbursements for atherectomy procedures over five years according to Medicare data, treats “a significantly high-risk patient base” who are at-risk for amputation, said his attorney, David Heim in an email this past August.

Do You Have Experience With Peripheral Artery Disease? Have You Had a Procedure on Your Leg? Tell Us About It.

by Annie Waldman, ProPublica, with data analysis by Alma Trotter and Fred Trotter, CareSet

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

Four years ago, researchers warned the Centers for Medicare and Medicaid Services that some doctors were overusing — potentially even abusing — invasive vascular procedures, increasing patients’ chances of complications, which include amputation or even death.

They handed the federal agency a list of outlier physicians they found in the government insurer’s own data. But the agency has done little to stop the practice and instead continues to pay doctors who exhibit this behavior millions of dollars a year.

The names of the doctors were never publicly revealed.

ProPublica is shedding new light on the problem.

Working with data journalists from the health analytics group CareSet, and in consultation with experts, ProPublica sought to better understand how often physicians were using one particularly controversial procedure, the atherectomy, on patients with questionable need for it. Over the past year, ProPublica has chronicled the rise of these procedures along with horror stories of patients who lost their legs from complications.

Their cases and many others, plus dozens of interviews with patients, health care providers and medical device representatives, have laid bare a thriving industry of strip-mall clinics and outpatient vascular centers where elderly patients are being exploited for multimillion-dollar Medicare payouts.

As part of the procedure, doctors use a laser or bladed catheter to remove plaque from the patients’ vessel walls. For treatments conducted in outpatient clinics, Medicare pays generous reimbursements to doctors, who can charge tens of thousands of dollars for procedures done in a single visit. Experts recognize atherectomies are appropriate for severe vascular disease, but they told ProPublica that the majority of patients with milder symptoms like leg pain while walking, a condition known as claudication, should start with treatments like medication and exercise.

We analyzed Medicare claims records for people who had first-time atherectomies between 2019 and 2022 and found that nearly 1 in 4 patients underwent the invasive procedure after only a diagnosis for claudication, indicating an early stage of vascular disease.

This amounts to nearly 30,000 patients who may have undergone procedures too soon or possibly even unnecessarily. (Read more about our findings and methodology.)

Some doctors stood out because of the money they made. Dr. Amiel Moshfegh, a Beverly Hills radiologist, received $45 million from Medicare over five years for performing thousands of atherectomies, according to public Medicare records. Most of his Medicare patients were older Latinos, according to federal data, who were warned in Spanish-language advertisements that poor circulation could lead to amputation. About 15% of his patients who underwent a first-time atherectomy, 170 of them, appeared to have milder disease based on their diagnosis for claudication, according to the data.

Other doctors stood out because a large portion of their patients who underwent atherectomies had just claudication, raising questions about the necessity of the procedures. That was the case for Dr. Christopher LeCroy, who works for a chain of vascular clinics across the Florida panhandle; about half of his first-time atherectomy patients appeared to have milder disease based on their diagnosis, according to the data.

And while over 5,000 physicians who provide vascular care rarely intervened on patients who appeared to have milder vascular disease based on their diagnoses, ProPublica and CareSet found that about 170 other doctors performed half or more of their first-time atherectomies on these kinds of patients.

“It’s concerning that we may be doing unnecessary procedures and spending unnecessary health care dollars,” said Dr. Caitlin Hicks, an associate professor of surgery at Johns Hopkins University School of Medicine and a leading researcher on procedure overuse. “We know that aggressive interventions for claudication may give short-term relief, but in the long term, patients are the same as they started or even worse.”

Doctors named in our data objected to being portrayed as part of the problem.

Moshfegh, for example, noted he had no malpractice claims or blemishes on his license. “Atherectomies ultimately can save the government and taxpayers millions of dollars by avoiding amputations,” he said. He did not respond to ProPublica’s questions on his clinic’s use of advertisements, the treatment of patients with milder vascular disease or why he had received more Medicare reimbursements for atherectomy than any other physician in the country. (Read his full statement here.)

LeCroy did not directly respond to ProPublica’s questions sent by email, but the clinical director at his practice said he doesn’t conduct procedures on patients with mild disease unless they have lifestyle-limiting pain and have already tried exercise and medication therapy. “This endovascular work is preventing patients having bypasses or amputation,” said Cherlynn Hecker. Others echoed these points.

Several portrayed the mounting concerns about overuse as part of a debate, not settled science, and said they should be trusted to decide whether their patients can benefit from atherectomies. Private practice doctors also explained that their high reimbursement payments are meant to cover their total business expenses and do not lead to excessive personal profit. Some rebuffed ProPublica’s analysis, taking issue with the use of claims data, which they said does not provide key details on patient symptoms and critiquing the focus on claudication, which they said can have a range of severity. While Medicare claims data has limitations, academics across the country and even government fraud detectives use it to examine trends and identify outliers.

Johns Hopkins surgeon and researcher Dr. Marty Makary said these kinds of outlier analyses are crucial to protecting patients. “Most of the public is flying blind,” said Makary, who also leads the organization Global Appropriateness Measures, which uses similar medical data to address outliers and curb overuse. “The moral dilemma that the medical community is now facing is that we can see practice patterns in big data that are inappropriate. Do we have a duty to act? I think we do.”

Using the research of Hicks, Makary and their colleagues as a springboard, ProPublica has spent the past year examining Medicare data for vascular care to answer some basic questions: Which doctors are making the most money off a single procedure? Who are they treating? And what is happening to their patients?

Relying on public Medicare data, we found that about 200 doctors are responsible for a majority of atherectomies conducted across the country. Over five years, from 2017 through 2021, this small cadre of mostly vascular surgeons, interventional radiologists and cardiologists has earned nearly $1.5 billion dollars, conducting almost 200,000 procedures. At the top of the list sits Moshfegh, the Beverly Hills radiologist who raked in almost double the reimbursements of any other doctor in America, for over 7,000 atherectomy procedures.

Doctors With Highest Medicare Reimbursement for Atherectomies From 2017 to 2021 Note: We defined an atherectomy procedure with Current Procedural Terminology codes 37225, 37227, 37229, 37231, 37233 and 37235. For each year of data, if a provider had fewer than 11 patients, they were not included in the dataset.

While some vascular specialists making millions have developed national empires of clinics, been profiled on local television or garnered dozens of online patient reviews, Moshfegh has kept a remarkably low profile.

After completing his medical training in 2014, Moshfegh went into outpatient vascular care. For a couple years, he led endovascular services for the Los Angeles office of Vascular Access Centers, a national chain of clinics founded by Dr. James McGuckin.

Moshfegh later began working with FIT Vascular, a smaller vascular clinic chain with offices in central Los Angeles and Bakersfield, California. He appears to have worked closely with several podiatrists, sharing hundreds of patients primarily with two podiatry clinics, according to recent Medicare referral claims data from CareSet. One of the podiatry groups, Stockdale Podiatry in Bakersfield, also shares office space with FIT Vascular — the vascular suite sits behind a beige, unmarked door off of the podiatry clinic’s waiting room.

When a ProPublica reporter visited the clinic, Victoria Arredondo, a medical assistant for FIT Vascular, told ProPublica that Moshfegh travels to Bakersfield from Los Angeles several times a week to conduct artery procedures, treating half a dozen patients a day. Nearly all of their patient referrals came from Stockdale Podiatry, she said. While Moshfegh’s name is not listed on FIT Vascular’s website, he is featured in its marketing videos and his face appears in its advertisements.

The federal government generally forbids doctors from making payments to induce referrals or making referrals to entities they have a financial interest in. While it’s not prohibited for physicians to pay another doctor to lease office space, such real estate transactions must be consistent with fair market value to abide by federal law. Neither Stockdale Podiatry or FIT Vascular responded to ProPublica’s emailed questions, including those related to their real estate arrangement. Moshfegh did not respond to ProPublica’s questions about his relationship with the podiatry clinic, though he did say that he adheres “the highest standards of medical ethics” and that his atherectomy statistics reflect “the confidence of referral sources in directing patients” to his practice.

While the raw numbers can highlight doctors like Moshfegh who stand out for how many atherectomies they do, they don’t provide much detail on how individual patients are being treated. So ProPublica worked with CareSet to look at the types of patients that doctors treat, examining whether doctors were frequently conducting procedures on patients who appeared to have more mild disease based on their diagnoses. Using Medicare claims data, we identified patients who underwent a first-time atherectomy procedure between 2019 and 2022, and for each doctor, we calculated the percentage of these patients who only had claudication.

Doctors Who Treated Largest Percentage of First-Time Atherectomy Patients With Milder Vascular Disease From 2019 to 2022 Note: We excluded physicians who conducted first-time atherectomies on fewer than 50 patients on average per year to focus on practitioners who have a higher use of the procedure over time. We defined milder vascular disease based on a diagnosis of claudication at the time of the initial atherectomy procedure within our study period.

This highlighted doctors like Dr. Juan Kurdi of Lubbock, Texas; nearly half of his first-time atherectomy patients appeared to have milder disease based on their diagnosis, according to the data. Kurdi did not directly respond to ProPublica’s emailed questions or phone messages, and his lawyer declined to comment. Kurdi’s currently the target of a criminal investigation by the Department of Justice, according to court filings; he has not been charged. The government and his lawyers are discussing a potential pre-indictment resolution, according to case filings.

His colleague Dr. Colbert Perez, who was also high on this list with 37% of his first-time atherectomy patients having only claudication according to the data, said that their practice, Caprock Cardiovascular Center & Cath Lab, had been marking their patients with incorrect diagnosis codes in Medicare billing claims for several years, which made their patient population appear to have milder disease. While billing errors can occur, CMS mandates that physicians “are responsible for ensuring that claims submitted” under their name are “true and correct.”

Perez said that he rarely intervenes on patients with mild disease, following best practices, and said the center, which outsources its coding and billing to another company, was looking into the billing issue and was in contact with CMS for corrections and changes. He did not provide details on the federal investigation into Kurdi but told ProPublica that his colleague was “going through a separation” with the practice.

In all, experts who reviewed ProPublica’s analysis called the findings alarming and validating. They called on government insurers to do something about the fact that a quarter of all patients who got first-time atherectomies — enough to fit in a sports arena — may not have needed them. CMS told ProPublica that it monitors claims data for outliers and can act when it identifies problems, by denying claims, suspending payment or referring questionable providers to law enforcement.

“When we see patterns that are beyond the boundaries of reasonable according to respected peers in the field,” Makary said, “that is a signal that there should be a closer review.”

Editor’s Note

ProPublica reached out to every doctor named in our story through multiple emails and phone calls, providing questions to the physicians, clinics, hospitals or lawyers. The following doctors, their offices or lawyers did not respond to ProPublica’s questions for this story at the time of publication: David Burkart, Ian Cawich, Thomas P. Davis, Pablo Guala, Omar Haqqani, Syed Hussain, Juan Kurdi, Moinakhtar Lala, James McGuckin, Jim Melton, Rajiv Nagesetty, Daniel Simon, Pushpinder Sivia and Harold Tabaie. Dr. Bhaskar Purushottam and Monument Health, where he works, both declined to comment. Riverside Healthcare in Illinois, where Hussain has worked since September 2022, also declined to comment on the doctor’s practice.

In addition to the doctors quoted in the story, the following doctors responded to ProPublica’s findings.

Maryland vascular surgeon Dr. Samer Saiedy told ProPublica that Medicare claims data doesn’t include enough details to provide a full picture of why he may have treated a patient with an invasive procedure. At his practice, patients are only given the option of invasive procedures, he said, if they have severe pain and have already tried less aggressive approaches first. “If you look at atherectomy only, and you narrow down, yes, I’ll be an outlier because I do a lot of claudicants for severe symptoms after we do the medical treatment,” he said. “They cannot walk through the pain, they’re already on blood thinners, they’re already on this and already on this. We’re going to do something.”

Saiedy also said the Medicare reimbursement data is misleading. Saiedy, who has made about $23.5 million from Medicare in reimbursements for atherectomy procedures over five years, according to federal data, said the payments cover all clinic expenses and are not going to him directly. “You have to look at the overhead of the practice,” he said. “That includes nurses, anesthesia, leases for the equipment, rent.”

California interventional radiologist Dr. Malwinder Singha, who received $23.8 million in Medicare reimbursements for atherectomy procedures over five years according to federal data, echoed Saiedy’s concerns. “It is devoted to running of the [office-based laboratory] and only a tiny fraction is earned by the operator,” he wrote in an email to ProPublica. “I have to pay my employees and expenses for all the supplies (wires, balloons, stents, atherectomy catheters, etc.), imaging equipment, [electronic medical records], facilities rent, etc.”

Singha also took issue with the use of claims data to identify clinical outliers. "It does not take into account the patient population I see and the severity of their disease," he said. He added that outpatient facilities are safe, and their patients are satisfied with their care. "What I and my colleagues do is safe and effective," he said. "There are hundreds of office based labs who treat thousands and thousands of patients. The adverse event rate is miniscule."

Interventional radiologist Dr. James McGuckin, who received $17.2 million in Medicare reimbursements for atherectomy procedures over five years, treats “a significantly high-risk patient base” who are at-risk for amputation, said his attorney, David Heim, in an email this past August. Earlier this year, the Department of Justice sued McGuckin for submitting false claims to the federal health care programs for “medically unnecessary invasive peripheral artery procedures,” allegations that Heim had called “provably wrong.” His lawyers have moved to dismiss the case.

Do You Have Experience With Peripheral Artery Disease? Have You Had a Procedure on Your Leg? Tell Us About It.

by Seth Freed Wessler

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

In late February, a smuggling boat carrying dozens of Haitians bound for the U.S. was intercepted so close to Florida’s shore that those aboard could see the lights of hotels and passing cars. But although they were in U.S. waters, they have few rights compared to people who arrive at land borders. That’s even true of the three young children traveling alone on that boat, a 10-year-old boy and two sisters, 8 and 4.

I spent months reporting on this group of people, the children in particular, and on the hidden world of immigration enforcement at sea, a border where different rules apply. These are five key findings of the investigation, published last week in partnership with The New York Times Magazine.

Coast Guard detentions in the Caribbean and straits of Florida have reached their highest level in nearly three decades.

Since the summer of 2021, the Coast Guard has detained more than 27,000 people aboard its fleet of cutters in the Caribbean and straits of Florida, more than in any similar period in nearly three decades.

“We are in extremis,” a senior Coast Guard official wrote to colleagues in an email, part of a trove of internal records and data that I obtained. Most of the 27,000 are Haitian and Cuban, people who in recent years have faced extraordinary levels of violence and political unrest. But even people fleeing violence, rape, the threat of death — who on land would be likely to pass an initial asylum screening, according to legal experts — are routinely sent back to the countries they’ve fled when they try to arrive by sea.

The U.S. government has a separate system for people detained at sea to ask for protection. But it is nearly impossible to get through. Of the 27,000 people detained since July 2021, the Coast Guard logged 1,900 such claims, according to an internal Coast Guard database I obtained. Only about 60 of them had those claims approved by the U.S. Citizenship and Immigration Services officials.

Yet even the people whose “fear” claims are approved are not allowed into the U.S. Instead they can agree to be sent to an immigration detention facility on the U.S. naval base at Guantánamo Bay, Cuba, where they’re told they should be prepared to wait for two years or more, until another country agrees to take them as refugees. Only 36 of the people with approved claims since July 2021 agreed to be sent to Guantánamo.

Unlike on land, even unaccompanied children traveling by sea are almost always denied protection in the U.S.

Since July of 2021, the Coast Guard has detained about 500 unaccompanied minors, mostly Haitians. Nearly every one of them was sent back.

On land, unaccompanied minors from countries other than Mexico and Canada cannot simply be turned back. But at sea, children are treated much like adults. Of the 500, only about 1% were allowed into the U.S. because officials determined they would likely be persecuted or tortured if sent back to the countries they fled.

The Coast Guard says that its crew members screen children to identify “human-trafficking indicators and protection concerns including fear of return.” A spokesperson told me that “migrants who indicate a fear of return receive further screening” by Homeland Security officials.

Once children are sent back to Haiti, some face uncertain fates.

No U.S. agency would explain what, if any, precautions the U.S. government takes to protect children, beyond an initial screening conducted aboard cutters.

Our reporting centered on the experience of a 10-year-old boy named Tcherry who, after he was delivered to Haiti by the Coast Guard, left the port with a man he’d met only weeks before at a smuggler’s house. No U.S. or Haitian officials spoke with Tcherry’s mother, who is in Canada, before the man was allowed to leave with the boy. The man himself was surprised how easy it had been.

“When we have custodial protection of those children, we want to make sure that the necessary steps are taken,” a Coast Guard spokesperson said, “to ensure that when we repatriate those migrants, they don’t end up in some nefarious actor’s custody or something.”

But one official from an agency involved in processing people delivered by the U.S. Coast Guard to Haiti told me, “Children leave the port, and what happens to them after they leave, no one knows.”

People are harming themselves in the hopes of making successful asylum claims.

As more and more people have taken to the sea, and their desperation has grown, an increasing number of migrants and refugees have harmed themselves in hopes that they will be rushed to hospitals on land, where they believe they can make asylum claims.

People detained on cutters have swallowed jagged metal cotter pins pulled from the rigging and stabbed themselves with smuggled blades, apparently trying to cause such severe injury that they’d be taken to a hospital. In January, a man plunged a five-inch buck-style knife that he’d carried onto a cutter into the side of his torso and slashed it down his rib cage. Crewmembers now start every leg at sea by scouring the decks for anything that people might use to harm themselves. According to a Department of Homeland Security spokesperson, “medical evacuations do not mean that migrants have a greater chance of remaining in the United States.” But without the ability to claim asylum on cutters, more people are trying anyway.

The rigid immigration restrictions at sea, combined with the nearly 30-year spike in people detained, has created a moral crisis for Coast Guard members, too.

Coast Guard crew members described to me their distress at having to reject desperate person after desperate person. Several people I talked to said that the worst part of the job was turning away the children who were traveling alone. “The hardest ones for me are the unaccompanied minors,” one crew member told me. “They’re put on this boat to try to come to America, and they have no one.”

Crew members were seeing so much suffering, including encountering the bodies of people whose boats had capsized in the sea, that it was not uncommon for them to find each other sobbing. Some were struggling with what one former crew member called a “moral dilemma” because they had begun to understand that the job required them to inflict suffering on others. “We hear their stories, people who say they’d rather we shoot them right here than send them back to what they’re running from,” another Coast Guard member told me. “And then we send them all back.”

The Coast Guard leadership was getting worried: “I don’t see how the current level of operations is sustainable,” the commander of U.S. Coast Guard Sector Miami wrote to colleagues, “without the breaking of several of our people.”

Jason Kao contributed data reporting.

by Byard Duncan and Ryan Gabrielson

U.S. consumers are falling behind on their auto loans at historic rates. Experts blame inflation, soaring interest rates and high retail car prices. Our journalists want to learn more about this industry and understand the causes and consequences of the surge in delinquencies.

Many struggling car owners have “subprime” loans, in which people with poor credit scores agree to pay higher-than-normal interest rates to qualify. Lenders say the arrangement is meant to protect them in case the borrower can’t pay.

For investors, subprime loans can also represent an opportunity: High interest rates on the consumers’ end can yield great returns when loans are bundled together and sold as securities on Wall Street.

In recent years, regulators have sued lenders, accusing them of issuing loans they knew consumers would fail to pay back. State attorneys general and the Consumer Financial Protection Bureau have also called out lenders, saying they are inflating the prices of cars and failing to clearly explain how much interest is due over the life of loans.

We think there are lots of stories to tell about this industry. To do the best possible journalism, we need to hear from people who know it well. Do you work for a subprime lender — in customer service, collections, loan funding, training or risk management? Are you paying off a subprime car loan? Are you a lawyer dealing with these issues in court? A regulator? An investor? Please use the form below to get in touch with us. We look forward to speaking with you.

by Vernal Coleman

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.

Early one morning in June 2022, Earl Westforth sat down at a small table inside a hotel conference room in northwest Indiana and began defending his life’s work.

Fourteen months earlier, the city of Chicago had sued his namesake Westforth Sports Inc., alleging that the outdoor- and sports-equipment shop was negligent in how it screened gun buyers and had become an epicenter for the unlawful purchase of guns, which were flooding into the violence-wracked city.

Over 50 years, Westforth had helped grow the Indiana business into one of the state’s most successful gun retailers. Operating from a squat building located just a few miles from the Illinois border on land set between downtown Gary and its richer suburbs, Westforth Sports raked in millions selling ammo, fishing gear and, most notably, guns.

Over eight hours, lawyers representing the city peppered Westforth with questions about how he and his staff handled situations in which a customer tried to purchase a gun for illegal use or resale on the underground market. Westforth explained how he looked for signs of bad intent: cash being exchanged between two customers, or a customer who clearly was drunk or high.

But as he said time and again, often the decision came down to something less tangible.

“Gut feeling is one of them,” he said at one point.

“It’s a gut reaction,” he said at another.

And: “You just feel like something’s not right.”

He later elaborated: “The way their — eye movement, who they’re with, nervous.”

If customers did raise suspicion, the store’s process for keeping track of them was far from precise: Employees wrote notes with their observations and suspicions, then posted them at the store’s cash register. How long the notes remained there varied.

Sometimes, the notes were discarded at the end of the day, Westforth said. If the customer was someone an employee wanted to keep track of beyond one day, the note was moved to a back office.

“Certain ones we keep,” Westforth testified, “depending on how we feel.”

But there was no guarantee that his employees would check the back office for a note if the customer returned, he acknowledged. No rules for how long to keep those notes. No rules for maintaining what he called the “be on the lookout” list. No comprehensive system at all for spotting problem customers.

More than 60,000 retail stores and pawn shops sell firearms in the United States, according to the most recent federal data. This glimpse inside one, as provided by Westforth himself in the 2022 deposition and in other records, puts in stark relief the weakness of government safeguards designed to keep guns from slipping into illicit markets and into the hands of criminals.

Guidelines set by the Bureau of Alcohol, Tobacco, Firearms and Explosives, the federal agency that oversees gun retailers, expects licensed owners like Westforth to act as the first line of defense in stopping the flow of illegal guns into vulnerable cities and towns. But with little financial incentive to forgo transactions and limited administrative penalties for failing to prevent illegal ones, some retailers have proven incapable or simply unwilling to play gatekeeper.

Earl Westforth personally has remained silent over the years even as he faced legal battles, scrutiny from federal agents and heaps of public criticism. Ultimately, he was able to leave the gun-selling business on his own terms, announcing his retirement over the summer. He did not respond to repeated requests from ProPublica for comment.

In his deposition, the details of which have not previously been reported, Westforth portrayed himself as a well-intentioned business owner who adhered to the letter of the law. He said that over the years, he and his employees went “overboard” to prevent illegal sales and keep guns out of the wrong hands, many times rejecting potential customers.

But in the deposition, Westforth was forced to address how his methods failed to prevent straw sales — where a firearm is purchased with the intent to resell it, most often to someone who is prohibited by law from purchasing guns.

One notable example involved Darryl Ivery Jr., an Indiana resident who in 2020 purchased 19 firearms from Westforth, spending over $10,000 in just six months. Ivery, who later pleaded guilty to making false statements on federal background check forms in relation to the 2020 purchases, took most of those firearms about 12 miles west of Westforth’s shop and across the state line to Chicago, selling them illegally for profit.

It’s totally legal. Maybe the guy just likes guns.

—Earl Westforth, owner of Westforth Sports, about a customer who repeatedly purchased guns, several of which were recovered by police in Chicago

Despite Ivery regularly purchasing multiple guns and paying with cash — red flags for straw sales and gun trafficking, according to law enforcement — Westforth and his employees welcomed Ivery’s business again and again.

Asked in the deposition whether Ivery’s string of purchases should’ve raised concerns inside his store, Westforth hedged, pointing out that retailers are not required to determine someone’s intent before selling them firearms.

“It’s totally legal,” he said. “Maybe the guy just likes guns.”

It’s impossible to know how many guns trafficked by Ivery may still be in circulation. But several that have been recovered reveal a pattern that begins at Westforth Sports and ends on the streets of Chicago, where retail gun shops have been effectively prevented from opening inside city limits.

City police confiscated one 9 mm handgun purchased by Ivery from a teen found breaking into a South Side apartment. They collected another 9 mm from a man accused of brandishing the gun at a motorist during a traffic dispute. Officers responding to reports of a March 2020 shooting found a teen in possession of a .40-caliber handgun purchased by Ivery, this one bought at Westforth Sports less than 30 days before.

All three were arrested and charged with illegal possession of a firearm.

For years, Chicago officials have loudly complained about the gun retailers in nearby Illinois and Indiana towns whose shops are the source of illegal guns they say continue to fuel the crime and gun violence that have long plagued the city.

Studies by the University of Chicago found that Westforth Sports was the third-largest supplier of guns recovered by Chicago police. The research, which was conducted in cooperation with the city and focused on 2009 to 2016, linked just over 850 such guns to Westforth.

“These eye-popping numbers are not the result of bad luck or coincidence or location,” Chicago alleged in the complaint explaining its case. “They are the natural and predictable outcome of a business model that maximizes sales and profits by facilitating straw purchases and other illegal gun sales.”

The ATF views retailers as partners empowered with the discretion to decline any potential transaction they find suspicious, according to the agency’s best practices guide for retailers. That approach, as demonstrated by the transaction history of Westforth Sports and other retailers, has not halted gun trafficking.

At least 53 people, including Ivery, were indicted on federal gun trafficking charges over guns purchased at Westforth Sports between 2011 and 2021, according to a filing in the suit, which sought to compel Westforth to tighten store policies and pay unspecified monetary damages.

In May, less than a year after Westforth’s deposition, a county judge dismissed the suit, ruling that the Indiana business could not be sued in Illinois. The city has since appealed the court’s decision.

A decade ago, the ATF came close to forcing Earl Westforth to shut his doors.

After Westforth barely avoided losing his license a year earlier, a 2012 inspection found lingering problems. Agency interviews with Westforth employees, along with a review of the shop’s sales records, revealed repeated clerical errors and several serious breaches of federal gun laws.

Among them: After a customer failed a federally required background check, the shop allowed a person accompanying him to purchase the gun on his behalf.

A customer can buy as many [guns] as they want, It’s not our job to tell him no.

— Earl Westforth

In response, inspectors recommended revoking Westforth’s license — just as they had in 2011. But a more senior agency official again opted for a “warning conference” to help correct Westforth’s lapses and ordered a follow-up inspection.

As part of the conference — one of three that ATF has required for Westforth since 2007 — Westforth’s employees, at his request, underwent a two-hour training session provided by the ATF covering proper record-keeping to prevent straw purchases. Yet the shop continued to rack up violation after violation in the following years.

Those violations led to citations and harsh words from the agency, including letters warning that “future violations, repeat or otherwise, could be viewed as willful and may result in the revocation of your license.” But the agency continued to grant Westforth additional chances.

In 2017, inspectors determined that Westforth was keeping incomplete records and had made a sale without conducting a background check or verifying the customer’s identity, as required. Then, in 2021, inspectors found a wide range of violations.

Westforth employees, the ATF report concluded, had again violated federal guidelines by failing to report to the ATF sales where customers purchased multiple guns — a key component of the agency’s anti-trafficking efforts. As they combed through the shop’s records, inspectors found the source of the problem. Westforth employees had been submitting the forms by fax,which had led to several failed submissions. The inspectors later urged Westforth to submit the forms by email.

Westforth employees also continued to have problems fulfilling their role as caretakers of federal records. ATF agents witnessed an employee “rip up and discard” two purchasing forms containing customer information after a sale fell apart because buyers were using a credit card with someone else’s name. Information on those potential buyers could have been useful to agents trying to trace straw sales or guns intended for crimes.

Westforth initially denied that his employees were discarding the forms, which federal guidelines require retailers to maintain. Then ATF agents audited the shop’s records and found that additional forms were missing.

Meanwhile, sales at Westforth’s shop had reached a high. He told ATF inspectors that in 2020, as the pandemic peaked and civil unrest over police misconduct spread, customers began to “line up out of the store, across the parking lot and down the block” to purchase guns. That year Westforth’s annual sales of about 3,500 guns nearly doubled.

Westford Sports sold thousands of guns a year, according to this document submitted as an exhibit in Chicago’s lawsuit against the company. (Circuit Court of Cook County)

Agents remarked how the store was always busy. “The parking lot was always full and numerous customers were always present at any given time,” the ATF report said. “There were always vehicles present with out of state, Illinois, license plates.”

Westforth also described in his deposition how he handled an important task required by ATF — so-called “trace” requests, or instances where a law enforcement agency asks the ATF to track down the source and purchase history of a gun. This is potentially important information if in fact the person who police confiscated the gun from was not the one who initially purchased it.

But instead of researching in response to the requests, Westforth’s employees typically answered without consulting records, he said.

Memory sufficed, Westforth testified. And later, if that same buyer of the traced gun walked into the shop and wanted to buy another firearm, Westforth wasn’t particularly concerned.

“A trace, as explained to us by the ATF, could be for numerous reasons,” he said. “It doesn’t mean he’s a bad person.”

Multiple guns purchased by such a person wasn’t a concern either, despite federal guidance saying gun retailers should be on alert for customers who purchase several guns in one transaction. “A customer can buy as many as they want,” he said, adding, “It’s not our job to tell him no.”

That’s up to the ATF, Westforth said. But, in fact, the ATF does rely on gun retailers to assist by providing accurate paperwork and, in some cases, denying sales when there are clear signs or a reasonable belief of illegal intent.

ProPublica asked Edgar Domenech, a former ATF chief operating officer, to review Westforth’s deposition and his inspection record. He was taken aback.

“His license absolutely should have been revoked back in 2011,” said Domenech, whose 25-year stint at the ATF spanned both Democratic and Republican presidential administrations. “What he’s saying, the processes he talks about, they’re sloppy at best. This was a golden opportunity to correct his bad behavior, but the agency fumbled it.”

The ATF declined to comment on its inspections of Westforth Sports or their outcomes.

“ATF’s core mission is to protect the public from violent crime, particularly crimes involving the use of firearms,” it said in a statement to ProPublica. Enforcing federal laws and regulations is “critical” to that mission, the agency said.

But Peter Forcelli, a former ATF deputy assistant director, said that retailers typically only face penalties if they knowingly allow straw purchases, and proving that is difficult. Plus, scrutiny of retailers is limited by a shortage of ATF compliance inspectors, he said.

No more guns will come up there [to Chicago]. Hopefully not from me.

— Earl Westforth, on stopping sales to Illinois residents

The shortfall represents a “substantial challenge,” the ATF acknowledged in its statement. The agency employs about 800 inspectors. That’s not enough to meet the agency’s own goal of inspecting each licensed gun seller every three years, it said.

Moreover, said Forcelli, straw sales have been considered a low priority by some federal prosecutors. “It’s a jacked-up system,” he said, “but we can’t put it all on retailers.”

Gun dealers rarely lose their licenses. In fiscal year 2022, the last year for which there is complete data, less than 1% of the nearly 7,000 compliance inspections of federal licensees resulted in a revocation.

Vowing to get tougher on lax retailers, the Biden administration in 2021 announced a far stricter policy in which even one serious violation would result in the ATF moving to revoke a license. Multiple inspection reports on Westforth Sports include a violation that fits that description.

Chicago was’t the first city to sue Westforth Sports seeking remedies to gun crime and violence.

In 1999, the city of Gary filed a sweeping suit against gun manufacturers and local gun shops, including Westforth Sports, claiming the retailers chose to overlook obvious straw purchasers. Gary’s suit has wound its way through the state’s court system and continues to this day.

But cases against retailers and manufacturers are difficult to prove — in part because while retailers may make questionable sales, it can be difficult to show that those actions were intentional or negligent.

Westforth Sports and the city came to an undisclosed settlement in 2008, so the retailer was dropped from the case. Still, attorneys for Gary continue to hold up the shop’s sales history as evidence of industrywide negligence in preventing gun trafficking.

A 2004 analysis commissioned by the city of Gary examining a decade of sales records identifies over 100 Westforth customers who engaged in sales that exhibited red flags associated with straw purchases. More recently, the sides continue to battle in court over what records can and should be disclosed, with the city requesting more recent gun sale information from Westforth and other area retailers.

For its suit against Westforth, Chicago enlisted the help of Everytown for Gun Safety, a national nonprofit, and compiled a roster of straw buyers like Ivery who had purchased from the shop.

By 2021, with the city’s headline-grabbing lawsuit in full swing, Westforth had begun weighing retirement. He confessed as much to ATF agents during an inspection of the shop conducted that same year.

He’d taken over the shop, which opened in 1955, from his father, and had planned to pass it on to his sons, he told inspectors. But one of his sons had already left the company, and in the wake of the lawsuit and deluge of bad press that followed, the business had become “radioactive.”

By then he had already made one concession following the complaints from Chicago. Westforth Sports was no longer selling guns to Illinois residents.

He said in his deposition that after being sued by Chicago, he had changed policies. “Just too much going on up there,” he said.

In the back-and-forth with the lawyer for Chicago, Westforth explained, “Well, when you hear about the shootings, you see the stuff on the news.”

And then he elaborated: “No more guns will come up there. Hopefully not from me. I’m not going to do it anymore.”

Ultimately, just as he told ATF he would, he shut down his business. Chicago lawyers hailed it as a victory for public safety. Westforth touted it as an opportunity for customers, announcing a “retirement sale” to liquidate the shop’s remaining inventory.

“Don’t miss these amazing deals,” the announcement read. “Once they’re gone, they’re gone forever.”

Mariam Elba contributed research.

by Brandi Kellam, Christopher Tyree and Louis Hansen, Virginia Center for Investigative Journalism at WHRO, and Lisa Riordan Seville and Mauricio Rodríguez Pons, ProPublica

This video was produced for ProPublica’s Local Reporting Network in partnership with the Virginia Center for Investigative Journalism at WHRO. Sign up for Dispatches _to get stories like this one as soon as they are published.

In the 1960s, when Newport News, Virginia, remained a largely segregated city, longtime Black residents wanted to expand their neighborhood, offering former farmland as plots to other middle-class families looking to build homes. 

The city had other plans. 

In a deliberate attempt to halt that growth, white city officials selected that same land as the location for a new college — and they wielded the power of eminent domain to make it happen. If the landowners didn’t want to sell, the city could take it. 

In “Uprooted,” a documentary short, James and Barbara Johnson tell the story of their beloved neighborhood, which was displaced by the creation and expansion of what is now Christopher Newport University. 

What happened in Newport News is by no means unique. In Chicago, Philadelphia, Norfolk, Virginia, and other cities across the nation, Black communities have been uprooted by colleges and universities, which were encouraged by federal policies that promoted the expansion of higher education at the expense of the surrounding neighborhoods. It is a legacy the country is only beginning to confront. 

Weaving the Johnsons’ story in with the wider history of Newport News and other universities, the film examines the legacy of racism and Black land loss that still reverberates today. James Johnson’s archive of photographs, newspaper clippings and documents animates the past, a reminder of the community he sees in his mind’s eye when he walks down Shoe Lane, the street where he was born and still lives as one of just five Black families who remain in the neighborhood. 

“Uprooted” is directed by Brandi Kellam, who grew up in the area and has spent more than two years investigating this story. She reported the story with Louis Hansen of the Virginia Center for Investigative Reporting at WHRO. It is produced by ProPublica’s Lisa Riordan Seville, with cinematography, editing and post-production by VCIJ’s Christopher Tyree and graphics by ProPublica’s Mauricio Rodríguez Pons. It premiered on WHRO Public Media in Virginia on Dec. 8.

Watch the documentary, and read all of ProPublica and VCIJ’s series, also called “Uprooted,” which explores how Virginia universities expanded by dislodging Black communities. 

Gabriel Sandoval contributed research and Lucas Waldron contributed graphics.

by Mary Hudetz

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.

The Biden administration has revised the rules that institutions and government agencies must follow to comply with the Native American Graves Protection and Repatriation Act — a law long hampered by limited funding and the unwillingness of many museums to relinquish Indigenous remains and burial items.

Interior Secretary Deb Haaland, the first Native American to hold a U.S. cabinet position, said Wednesday that the regulations will “strengthen the authority and role of Indigenous communities in the repatriation process” by requiring institutions to defer more to tribes’ knowledge of their regions and histories in their decision-making about repatriations.

Thirty-three years ago, Congress passed NAGPRA to prevent grave looting and push museums to return human remains and items excavated from Native American gravesites to tribes. But the promise of repatriation that many tribal nations once saw in the law has not been fully realized, with federal data showing institutions continue to store about half of the 200,000 ancestral remains they reported holding following passage of the 1990 law.

This year, ProPublica’s Repatriation Project investigative series revealed that archaeologists and scientists at some of the nation’s top universities and museums have exploited loopholes in NAGPRA to delay or resist turning over holdings reported under the law.

“Finalizing these changes is an important part of laying the groundwork for the healing of our people,” Haaland said in a written statement.

Haaland described NAGPRA as an essential tool for the “return of sacred objects and ancestral remains to the communities from which they were stolen,” though senior administration officials also acknowledged that getting institutions to comply with the law has long been a challenge.

As we reported this year, institutions have dismissed tribes’ oral histories and other evidence of a connection to the ancestors they sought to claim, saying that not enough information was available to conduct repatriation. In these cases, museums have declared the human remains and items “culturally unidentifiable,” which allowed them to be used for scientific research over tribes’ objections.

ProPublica also found that since the 1990s researchers have routinely obtained federal research grants to conduct radiocarbon dating, DNA extractions and bone chemistry analyses on Native American remains that Congress expected would have been repatriated within a decade of the law’s passage. This research gives scientists insight into the diets, ages and genetics of ancient populations but requires destroying small portions of bone. Tribes have long asked to be consulted on such research or opposed it altogether because the destruction of ancestral remains, like grave looting, violates deeply held religious beliefs.

“We know that research and scientific studies have been conducted on most, if not all, of our stolen ancestors and their burial property,” Mark Fox, chairman of the Mandan, Hidatsa and Arikara Nation in North Dakota, wrote in a letter to Haaland earlier this year. “We also know that is why NAGPRA is almost 33 years old, and many museums and all of the federal agencies are still not in full compliance with the Act.”

The new regulations will direct institutions to defer to tribal nations’ knowledge of their customs, traditions and histories when making repatriation decisions. The rules will also eliminate the “culturally unidentifiable” designation. Museums will be required to determine, in consultation with tribes, which community can rightfully claim human remains or items in their collections. If a museum finds that it still cannot make a determination, it would have to say why in a notice filed in the Federal Register, said Melanie O’Brien, program manager of the National NAGPRA Program, an office within the Interior Department’s National Park Service.

The regulations are largely consistent with draft rules the department proposed late last year. However, some changes have been made following a monthslong public comment period and a year of heightened media attention on repatriation in response to ProPublica’s reporting.

The law initially required institutions to inventory the human remains and belongings of Native American ancestors and burial items and identify those that might be repatriated. The new regulations will give institutions five years to update those inventories and publish them in the Federal Register. Initially, the Interior Department proposed a two-year deadline, but it extended it after tribes and museums said this would not allow enough time for the consultations between museums and tribes that the law requires before repatriation.

The final regulations also include firmer mandates for institutions to obtain tribal consent before allowing Native American remains and items held in museum collections to be used for research.

Last year, the Interior’s proposed regulations said institutions should limit scientific research “to the maximum extent” feasible at the request of a tribe. The regulations will now require institutions to seek or obtain “free, prior and informed consent” from tribes before allowing any research to happen.

The finalization of the new federal regulations was publicly announced Wednesday during the White House Tribal Nations Summit, an annual meeting in Washington of tribal leaders and federal officials. The regulations are set to go into effect next month.

by Patrick Lohmann, Source New Mexico

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

Donato Sena and his wife, Maria Luisa, spent a recent afternoon loading furniture into the new mobile home placed on their land in Rociada, one of the areas hit hardest by New Mexico’s massive wildfire last spring.

The task was tiring for the couple, both in their 70s, and came after months of struggle to rebuild a semblance of their former lives stolen by the Hermits Peak-Calf Canyon Fire. They’d fought with contractors, bureaucrats, lawyers and sometimes each other as stress mounted and time stretched on.

That afternoon, however, Sena was happy.

“Finally, things are coming around,” Sena told his wife as they drove back to the house in Las Vegas, New Mexico, where they’ve lived since the fire. Even though their bills were mounting and their home was far from ready, maybe they’d get to spend a night there by Christmas, they told each other.

That night, Sena collapsed as he walked toward the front gate of their home since the fire, holding bags of groceries. He died. “I kind of knew he was already gone,” Maria Luisa Sena tearfully recalled of the moment she rushed to hold him on the sidewalk.

The cause of death hasn’t been determined, but his family believes a heart attack caused him to fall and hit his head. His wife and daughter, Nicole Sandoval, said in an interview that they believe the stress of trying to rebuild played a role.

“I strongly believe that, yes,” Maria Luisa Sena said. “Absolutely,” Sandoval added.

Like thousands of others from the area, Sena and his family are still awaiting payment from a $3.95 billion fund Congress established late last year to compensate victims of the wildfire, which was started by the U.S. Forest Service after it lost control of two prescribed burns.

Survivors of the fire told Source NM and ProPublica that the delays leave them in limbo. Many are desperate for compensation but unsure whether they can trust the Federal Emergency Management Agency after its initial disaster response last year. Few households received FEMA trailers while the agency was ramping up the claims office, and then it took too long to finalize regulations and begin to process claims, fire survivors said.

This summer, attorney Antonia Roybal-Mack convinced a federal judge to allow her to depose Sena and five other elderly or infirm clients, an effort to preserve their testimony should they die before getting paid or suing the federal government.

Sena’s death underscores the high stakes of delays in compensation and the tragedy befalling the aging, rural communities severed from the land they cherish. Some of them, like Sena, may never get to return to the land where their families lived for generations.

Data from the state Department of Health shows the two counties most affected by the disaster have been losing population for years, and local elected officials are concerned the slow recovery is accelerating that trend.

As of Nov. 30, FEMA, which is overseeing the compensation fund, had paid out $137 million, or about 3.5% of the total. Most of that has been paid in recent months, and frustration has grown among fire victims now waiting more than 18 months after the fire began for compensation.

Sena had submitted his claim more than five months ago. Roybal-Mack noted that the 74-year-old had been in precarious health as he waited for money to trickle out of the fund. He’d endured four bouts with cancer, most recently of the colon.

“Donato had one goal and that was to make it a single night in his new rebuilt home. I think what the government did here,” Roybal-Mack said, referring to the fire and the time it’s taken for FEMA to compensate people, “is unforgivable.” She is now pushing for payment on the claim.

Donato Sena in front of the replacement home he and his wife bought with their savings to return to Rociada, New Mexico (Photo courtesy of Maria Luisa Sena)

In response to the attorney’s criticism, the FEMA office handling claims for fire victims offered its “deepest condolences” to Sena’s family and friends and said it would continue to work hard to compensate victims of the disaster.

Sena, whom family and friends call Frank, met his wife in high school in Las Vegas; they were married 54 years ago. The couple moved into their home in Rociada in 1991, about the time he retired as the police chief in nearby Las Vegas.

The couple fixed up the century-old adobe outbuilding they lived in and added rooms over the years. The home became the gathering place for their two children, four grandchildren and eight great-grandchildren.

On July 17, Sena sat for a deposition with his lawyers and those for FEMA. He recounted under oath seeing a massive plume of smoke through his picture window on April 25, 2022, and immediately fleeing his home with his wife and dogs. He later got a call from a sheriff’s deputy telling him his home had burned hours after they fled. “We were lucky to get out of there,” he said.

Sena also recounted his frustration with FEMA. He said that he appealed denials three times before being awarded $10,000 in FEMA disaster assistance, and that he had grown so distrustful of a separate federal disaster loan program that he decided to withdraw his application. Under cross-examination by Jordan Fried, a FEMA lawyer, Sena expressed his wish to return home as quickly as possible.

“My goal just this year is to get over there, and we want to live there. We want to move back,” he said, according to the deposition transcript. He wanted to get as much done as possible by the fall, he said, because winter would stall progress for months.

In an interview two weeks before his death, Sena told Source NM that he was exhausted after being repeatedly denied by FEMA and was running out of savings while he rebuilt without any financial assistance. The stress took a toll on his marriage, but he and his wife said they found a way never to go to bed angry.

“I think the only thing that saved us is we’ve been together forever. It’s not in our interest, no? Why would we want to leave each other over this?” he told Source NM. “But that’s how, that’s how bad it’s felt sometimes. I was a cop for 46 years, and let me tell you, this has been the worst, worst time in my life.”

With his cancer in the rearview mirror, he said, he was looking forward to finally coming home.

“Hopefully I can live to at least 85. That’s a long life,” he said after listing off his relatives who lived until their 80s or 90s. “I’m not ready to go yet.”

His death leaves his wife in charge of the logistics of recovery and the prospect of returning alone. She said she feels she owes it to her husband to move into the mobile home they bought with savings, turn on the lights and take in the views from their new picture window overlooking the Rociada valley.

They positioned the new home on their property to maintain the view, like they had before the fire.

“We angled it north and south so that we could have the view to the valley, because it was so beautiful,” Maria Luisa Sena said. “It is still beautiful.”

More than 100 people packed into the Our Lady of Sorrows Church on Nov. 13 for Sena’s funeral. He received an honor guard from his former police colleagues, and his coffin was draped with an American flag to honor his service in the Navy.

The family had decided not to bury him in the veterans cemetery in Santa Fe, alongside his parents and brothers. Instead, he was laid to rest in the Rociada cemetery, just a short walk from his old home.

The fire had blackened the cemetery’s soil, scorching trees and dumping ash on white gravestones. But Maria Luisa Sena said it’s the only place he could be at peace.

“It’s burnt. It’s all burnt. But he’s there. We took him back to Rociada,” she said, holding back tears. “Because he wanted to go back.”

Sena was buried at the Camposanto del Santo Niño Cemetery in Rociada. The cemetery was badly burned in the fire. Neighbors have since added sandbags and removed some trees to prevent future damage. (Patrick Lohmann/Source NM)

by Isabelle Taft, Mississippi Today, and Mollie Simon, ProPublica

This article contains depictions of self-harm and discussion of mental illness.

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

Butch Scipper is haunted by the deaths of three men.

As chancery clerk of Quitman County in the Mississippi Delta, he coordinates a legal process in which people are ordered into treatment for serious mental illness or substance abuse — a common way for Mississippians, especially poor people without insurance, to access inpatient care.

Dozens of times a year, people ask Scipper for help because they are afraid sick family members will hurt themselves or others. Up until a few years ago, he sent many of those family members to jail as they waited to be evaluated and treated.

Jailing people with no criminal charges during the civil commitment process is common in Mississippi because many county officials see no other option when publicly funded mental health facilities are unavailable. In jail, Scipper figured, people going through the commitment process would be prevented from harming themselves or others.

Yet three men — Tyrone Compton, Brandon Raymond and Brian Sneed — killed themselves in the Quitman County jail. Compton and Raymond died the same way, in the same cell, just seven months apart in 2006 and 2007. Sneed died in 2019.

“These three guys run back and forth across my head,” Scipper said. Sending them to jail, he now believes, “was not the right thing to do.”

Since 2006, at least 14 Mississippians have died after being placed in jail during the civil commitment process, purportedly for their own safety. Nine of them, including those three men, died by suicide. Twelve had not been charged with a crime.

It’s not easy to know what goes on inside Mississippi jails — unlike in many states, they’re not subject to mandatory health and safety standards — but lawsuits and Mississippi Bureau of Investigation reports provide some visibility.

Mississippi Today and ProPublica read sworn testimony by family members, jail staffers, administrators, sheriffs and other inmates regarding deaths in jail during the commitment process. We reviewed medical and jail records. We compared suicide prevention policies to nationally recognized guidelines. And we shared key facts about these cases or the policies in effect at the time with a dozen experts in correctional health care, including psychiatrists and other physicians.

Before 11 of the deaths, the medical care and suicide prevention measures fell short of national standards, sometimes shockingly so, according to experts and a review of those standards. (The care provided before the other three deaths, including the most recent one in August, is unclear.)

Before most of the nine suicides, staff didn’t take some basic steps to prevent people from killing themselves, according to those experts and nationally accepted guidelines. And when people going through the commitment process exhibited serious medical issues, jail staff didn’t get them the help they needed, experts said after reviewing the circumstances of those deaths drawn from a Mississippi Bureau of Investigation report, depositions and records filed in court. Staff didn’t review medical histories. They interpreted signs of medical distress as manifestations of mental illness or the influence of drugs or alcohol. They failed to act.

Nakema Fox died in 2007 after being held in the DeSoto County jail, leaving behind her high school sweetheart and husband, Terry Fox (right), her daughter, Faith Fox (middle), her son Janauris Blanch (left) and two other children. Nakema Fox had been diagnosed with schizophrenia and was awaiting transportation to a state psychiatric hospital when she died. Over 11 days in jail, she barely ate, according to a Mississippi Bureau of Investigation report. Fox died of a pulmonary embolism soon after a jail employee noticed her coughing and called a nurse. DeSoto County officials declined to comment on Fox’s death, though a sheriff’s department official said staff keep track of when inmates refuse meals and have medical staff evaluate them. (Eric Shelton/Mississippi Today)

When you see somebody that ain’t eating, you can’t just let them sit there and do that. ... They’re still somebody. They’re still a human being.

—Terry Fox, husband of Nakema Fox, who died of a pulmonary embolism in jail

Local officials in Mississippi say they sometimes need to jail people during the commitment process to keep them safe. But according to the experts we interviewed, jails not only fail to guarantee safety for people with serious mental illness, they can be particularly dangerous for them.

“There’s a whole lot more to safety than just bars and shackles,” said Dr. Robert Greifinger, the former chief medical officer for the New York state prison system.

That point has long been made by sheriffs and jail administrators in Mississippi, too. In 1999, for instance, a 43-year-old man killed himself in the Union County jail as he waited to be taken to Mississippi State Hospital near Jackson for psychiatric treatment.

"He was under watch, but you can't watch him every minute," Joe Bryant, then sheriff of the north Mississippi county, said at the time. "It just brings to light a problem that county jails face: There should be some means besides a county jail to house mental patients. A jail is not equipped for this."

Nearly a quarter-century later, the problem persists. A law passed in 2009 requiring jails to meet state standards if they hold people awaiting psychiatric treatment has resulted in just one jail that’s certified among the 71 that detained about 800 such people in the year ending in June 2023.

When someone dies in jail awaiting treatment, litigation is the primary way families can try to hold officials accountable. Yet none of the nine lawsuits filed over deaths since 2006 have resulted in a court ruling that held county or jail officials responsible. Four were settled. One is ongoing. The rest were dismissed or lost at trial.

Legal experts say such suits rarely succeed, in part because it’s so hard to prove that jail medical care was so bad that it violated someone’s constitutional rights.

But the failure to meet a legal standard doesn’t mean there isn’t a problem. Correctional health care experts said Mississippi’s practice of jailing people solely because they’re mentally ill or addicted to drugs or alcohol has caused deaths that could have been prevented.

"It’s taking people with a suspected health problem and putting them in a place that is likely going to increase their risk of dying from that health problem. The health risks of jail are well established, and they include suicide,” said Dr. Homer Venters, former chief medical officer of New York City jails.

“It’s a terrifying practice."

Unwatched and Unprotected

(Vanessa Saba, special to ProPublica. Source image obtained by Mississippi Today and ProPublica.)

After Scipper took office as Quitman County chancery clerk in 1992, he started handling up to 100 civil commitments a year. He instructed family members on how to file the paperwork, waited for judges to order people into treatment and, if families didn’t want them at home, figured out where to hold them in the meantime. “We used to just automatically put them in the jailhouse,” he said.

In 2006, a man came to Scipper’s office to file commitment papers after his son attacked him. The father was concerned the young man, Tyrone Compton, would hurt himself. Later that day, Compton hanged himself from a set of bars mounted in front of a window in his cell.

Seven months later, Brandon Raymond hanged himself from the same bars as he waited to be taken to a state hospital for drug rehab. It wasn’t until after his death that a piece of metal was welded onto the bars, even though the jail administrator had warned county officials about the danger after the first suicide, according to a deposition in a lawsuit filed over Raymond’s death.

It was an obvious shortcoming. For years, suicide was the leading cause of death in U.S. jails, primarily from hanging. Long-accepted standards direct jail staff to keep people who are at risk of suicide away from bars or protrusions.

A review of court filings and investigations related to the suicides points to shortcomings in how people going through the commitment process were screened for suicide risk, where they were held and how they were monitored.

Suicide prevention policies that address these issues have long been recognized as an essential element of jail medical care. But the former Quitman County jail administrator testified that he didn’t know about any policies whatsoever at the time of Compton and Raymond’s deaths.

David Fathi, an attorney who has worked on litigation over jail and prison conditions for more than 25 years and now serves as director of the ACLU’s National Prison Project, reviewed suicide prevention policies that were in effect at five Mississippi jails where several people died by suicide. Some, he said, were “among the worst policies I’ve ever seen.” One policy said staff could turn off water in a cell to reduce the risk of self-harm — a practice Fathi said has resulted in deaths by dehydration of people with mental illness.

“To send people to jail because they have mental illness, and to send them to a jail that has either flagrantly inadequate suicide policies or no suicide policy at all, is a recipe for disaster,” Fathi said.

If you or someone you know needs help:

• Call the National Suicide Prevention Lifeline: 988
• Text the Crisis Text Line from anywhere in the U.S. to reach a crisis counselor: 741741

Screening inmates for suicide risk is a key part of such policies, and it’s a standard part of the booking process at jails across the country. Staff should ask inmates multiple questions, ranging from explicit ones about whether they have considered suicide to less direct ones like “Have you ever wished you were dead or wished you could go to sleep and not wake up?”

At least six of the nine people who killed themselves, including Compton and Raymond, weren’t screened at all or underwent screenings that didn’t meet national standards, according to depositions and jail records.

For nearly three years after Raymond died without being screened, staff still did not conduct screenings for medical or psychiatric issues, according to depositions. Jail policy had required such screenings for years, but employees, including the former jail administrator, didn’t know that, according to depositions.

Quitman County’s current medical questionnaire does ask staff to determine whether the inmate is “so disoriented or mentally confused as to suggest the risk of suicide,” but leaders in correctional health care told Mississippi Today and ProPublica that’s not sufficient.

Brandon Raymond’s sister, Stacy Raymond, has few pictures of her brother; she got this one from a Facebook memorial post. She said if she had known he would die so young, she would’ve taken more photos. She described him as big-hearted, always happy and a devoted father to his son. (Photo courtesy Stacy Raymond)

I can still see Brandon in my yard. I can still see Brandon coming in my front door. I’ve lost my daddy, and I’ve lost my mama, but it’s nothing like my baby.

—Sandra Pruitt, mother of Brandon Raymond, in a deposition

Compton’s father and Raymond’s mother filed lawsuits against Quitman County, the sheriff and sheriff’s department staff. In response to the Compton lawsuit, the defendants argued they were shielded by qualified immunity, a doctrine that protects government officials from liability for violations of constitutional rights that are not clearly established. They also argued that Compton’s death was the result of his own conduct and that even if his rights had been violated, it wouldn’t have been due to a county policy.

In response to the Raymond lawsuit, defendants argued that qualified immunity applied, jail staff had no reason to believe Raymond was at risk of suicide, and no county policy led to a violation of his rights.

Quitman County settled both lawsuits for undisclosed sums. The sheriff and county officials other than Scipper did not respond to requests for comment for this story.

Once people are booked into jail, there are nationally accepted guidelines on what staff should do to prevent people from killing themselves.

People who are seriously mentally ill are “naturally at higher risk for suicide,” said Dr. Brent Gibson, former chief health officer at the National Commission on Correctional Health Care and founder of the health care consulting company Avocet Enterprises. “All of these people should be directly observed in some kind of way.”

Staff should check on people at risk of suicide at irregular intervals of no more than 15 minutes, according to standards developed by the National Commission on Correctional Health Care. People who are trying to hurt themselves or say they plan to do so should be watched constantly. At-risk inmates should be housed in cells that are “suicide-resistant.” If necessary, their clothes and bedding should be replaced with smocks and blankets made of thick, sturdy material.

Before all nine suicides in Mississippi jails, those things didn’t happen — in part because at least two inmates were never screened in the first place — according to depositions, Mississippi Bureau of Investigation reports and jail records. Just one person was put on suicide watch and housed in a suicide-resistant cell. At least eight weren’t monitored as frequently as guidelines say. At least seven of the eight who hanged themselves weren’t provided with special clothing or blankets. At one jail, the policy was to put someone on suicide watch only if they had attempted suicide there.

Quitman County Sheriff Oliver Parker said in a deposition that his staff did not keep an especially close eye on Raymond because his commitment did not stem from a suicide attempt.

In 2019, 12 years after Raymond died, Brian Sneed was booked into the Quitman County jail without criminal charges as he awaited a drug rehab bed. When the 52-year-old welder was discovered dead from suicide, it had been more than an hour since jail staff had checked on him, according to a Mississippi Bureau of Investigation report.

Quitman County Chancery Clerk Butch Scipper at the courthouse in Marks, Mississippi (Eric J. Shelton/Mississippi Today)

They may die out on the street — I can’t say they don’t. But in a jail cell is just not a good spot for them.

—Quitman County Chancery Clerk Butch Scipper

After Sneed’s death, Scipper concluded he couldn’t guarantee people waiting for treatment would be safe in jail. “I said right then, they may die out on the street — I can’t say they don’t,” he said in an interview. “But in a jail cell is just not a good spot for them.”

Now, he tells people to wait at home until a publicly funded treatment bed is available. Nothing in state law prohibits that, though the state Department of Mental Health says people who are well enough to wait at home may not actually need to be committed.

When the Doctor’s Waiting Room Is a Jail Cell

(Vanessa Saba, special to ProPublica. Source images obtained by Mississippi Today and ProPublica.)

The bare-bones medical care in many Mississippi jails can be dangerous for people who are mentally ill even if they aren’t suicidal.

Over the three days that Princess Anderson was held in the Marshall County jail awaiting a commitment hearing in February 2011, her physical condition declined precipitously. Jail staff did little to inquire about her medical history, according to depositions in a lawsuit later filed over her death. And staff failed to call for help as she exhibited signs of medical distress.

By the time Anderson arrived at a hospital, “she may very well have been one of the sickest patients I’ve ever seen,” her attending physician in the intensive care unit testified in that lawsuit.

Anderson’s journey through the commitment process had started four days before, when she went to a hospital near Memphis and learned she might be suffering from an ectopic pregnancy, a painful and possibly fatal condition. She was released but later that day went to Baptist Memorial Hospital-DeSoto, where she reported that she had ingested cough syrup and marijuana and complained of nausea and anxiety. After she shoved nurses and screamed that she was going to die, a mental health assessor working on behalf of the hospital filed paperwork to have her involuntarily committed.

Anderson was taken in shackles from the hospital to the jail in neighboring Marshall County, where she lived, to await a psychiatric evaluation. On one jail document, her “most serious charge” was recorded as “LUNACY.”

Booking officer Adella Anderson, who is not related to Princess Anderson, handled the medical screening. Princess Anderson didn’t respond to her questions, so the booking officer later testified that she filled out the screening form with the limited information in the commitment paperwork.

Experts said the booking officer should not have simply stopped her inquiries because Anderson didn’t respond; she should have asked a mental health professional to gather more information.

The booking officer testified that she knew Anderson had been brought from a hospital but didn’t find out why. She said she didn’t open an envelope containing Anderson’s medical records because she thought that was illegal. (The law allows correctional staff to review medical records if necessary, but experts said such staff should be trained in doing so, and she was not.) If she had opened the envelope, she might have seen hospital paperwork about the ectopic pregnancy.

Gibson said he has seen “numerous deaths” occur after a jail staffer gave up on a medical screening because an inmate didn’t provide information. “If someone is literally not responsive, they probably shouldn’t be in the jail at all — they should be in the hospital,” he said.

Efforts to reach Adella Anderson by email, phone and mail were unsuccessful.

The next day, an employee of Communicare, the local community mental health center, tried to evaluate Princess Anderson. Again, she was “unresponsive,” according to the form that therapist Debra Shelton filled out. Shelton used paperwork from the hospital to complete the form, concluding that Anderson had tried to harm herself after learning she was pregnant. “Recommend immediate transfer to hospital” for psychosis, Shelton wrote. (Efforts to reach her for this story were unsuccessful.)

Instead of being hospitalized, Anderson was left alone in her cell with inconsistent monitoring until she could be evaluated further as part of the commitment process.

Angela Anderson wrote in a text message that her daughter Princess Anderson, at left with unidentified people, had a “Beautiful Spirit that she carried everywhere.” Angela Anderson testified that hospital staff wouldn’t let her take her daughter home because commitment proceedings were underway. She was surprised to learn that meant Princess would wait in jail for psychiatric treatment. (Photo courtesy Angela Anderson)

I would never ever thought in my life that anything like this would ever go on, you know, what happened to my child. … They’re supposed to be protecting you. They supposed to be caring for you.

—Angela Anderson, mother of Princess Anderson

If she had been in a state psychiatric hospital, medical professionals would have routinely checked her vital signs. That’s important because people with mental illness may not recognize signs of physical illness and ask for help, correctional health care experts said. In jail, however, none of the staff were required to have any medical training aside from CPR.

Over the next two days, Anderson’s condition became increasingly concerning to those around her — but not to jail staff, according to depositions.

She removed her clothes and, according to an inmate’s testimony, lay on the floor in a pool of water for hours at a time. “There wasn’t nothing abnormal for her to get on the floor,” the booking officer later testified. “Most lunacies do that.”

Anderson got sicker. She barely spoke. Her fingers bled from scratching the walls. When she foamed at the mouth, inmates beat on a cell block door for help and told jailers they thought she was having a seizure. Two inmates called 911. Even “the church people” who regularly came to the jail tried to get staff to call an ambulance, one inmate testified.

The booking officer later testified that she didn’t take those calls for help seriously. Inmates “do that with everybody,” she said.

Greifinger, the former chief medical officer for the New York state prison system, said that kind of thinking is common among correctional staff around the country. Even when they see an inmate vomiting or know someone hasn’t eaten for days, he said, “there’s a tremendous culture of disbelief that’s rampant.”

Meanwhile, Anderson’s mother, Angela Anderson, found hospital paperwork saying her daughter might have an ectopic pregnancy. Angela Anderson went to the courthouse to ask if she could take her daughter to a hospital for an ultrasound.

Sarah Liddy, the special master presiding over Princess Anderson’s commitment proceedings, allowed the young woman to leave the jail only after her mother signed a document promising to pay for her medical care. Liddy didn’t respond to a request for comment for this article.

When Angela Anderson arrived at the jail, she found a horrifying scene, according to her testimony. Her daughter was lying on the floor, in two inches of water, feces and vomit. Her fingernails were broken off and there was blood on the walls. Princess was unconscious, only able to groan. Angela begged jail staff to call 911, testifying later that she felt “like a fool” for calling for help from inside a jail.

Princess Anderson was admitted to an ICU with a diagnosis of psychosis, acute renal failure, a metabolic disorder and sepsis. She died a month later at the same hospital where staff had started the legal process that landed her in jail.

According to her autopsy report, Anderson may have experienced a miscarriage in jail. Based on the autopsy and the available information, a medical examiner concluded that she died from multisystem organ failure of an unknown cause.

Dr. Marc F. Stern, a professor at the University of Washington and former medical director for the Washington State Department of Corrections, reviewed key facts of Anderson’s case. He said the behavior that caused hospital staff to initiate commitment proceedings may have been caused by an underlying medical issue.

What happened to Anderson, he said, shows that Mississippi’s practice of jailing people who need medical care is “dangerous, unconscionable, and inhumane.”

“Ignoble, Sordid, Upsetting, and Tragic.” But Not Unconstitutional.

(Vanessa Saba, special to ProPublica. Source image obtained by Mississippi Today and ProPublica.)

When Anderson died, her mother sued Marshall County and Sheriff Kenny Dickerson, as well as Baptist Memorial Hospital-DeSoto. Hers was one of at least nine lawsuits filed by families seeking to hold accountable the people who had detained their loved ones.

Outside of criminal charges, such lawsuits are typically the only option relatives have. Eight of those suits have run their course; none have resulted in court rulings holding anyone liable.

Unlike the vast majority of Americans, incarcerated people have a constitutional right to health care, thanks to a 1976 Supreme Court decision. But in order to prove that insufficient medical care violated an inmate’s constitutional rights, a plaintiff must demonstrate “deliberate indifference” — that staff knew an inmate needed medical attention or was at risk of suicide, but did little or nothing in response.

“That’s a super hard standard to meet,” said Michele Deitch, an expert on jail oversight and director of the Prison and Jail Innovation Lab at the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin. “You have to get into the head of the person who caused harm,” she said. “They had to know there was a risk of serious harm, and then they did this thing anyway, not caring.”

Princess Anderson’s mother couldn’t meet that standard.

Her suit alleged the sheriff’s office was deliberately indifferent to Princess Anderson’s medical needs. Attorneys representing the sheriff and the county argued the sheriff was entitled to qualified immunity and that jail staff had taken measures to care for Anderson, pointing out that hospital staff had medically cleared her to be taken to jail. The sheriff and other county officials didn’t respond to inquiries for this article.

The suit also alleged that the hospital failed to diagnose the cause of Princess Anderson’s altered mental state and stabilize her and that it handed her over to deputies without proper instructions. In response, the hospital argued that it was protected by a provision of Mississippi law that says anyone “acting in good faith” during the civil commitment process can’t be held liable.

A federal judge dismissed the case against the sheriff based on qualified immunity. The county was later dismissed as a defendant because jail policies were not the “moving force” behind Anderson’s death and jail staff had “periodically” monitored her.

“Officers observed Anderson’s pattern of taking off her clothes and lying on the floor, but they found this conduct to be consistent with other mentally ill inmates at the jail,” U.S. District Judge Debra M. Brown wrote in her December 2014 opinion.

Angela Anderson appealed that decision to the 5th Circuit Court of Appeals. In their ruling, circuit judges called Princess Anderson’s death “ignoble, sordid, upsetting, and tragic.” But they agreed that Anderson’s mother had not proven that officials had acted with deliberate indifference.

All of the lawsuits filed over these deaths alleged the care provided in jail demonstrated deliberate indifference. In the three cases in which judges issued rulings, none found those arguments persuasive.

Anderson’s suit against the hospital eventually went to trial in state court. A jury sided with the hospital.

In an email, Baptist Memorial Health Care’s director of public relations, Kim Alexander, wrote of Princess Anderson, “I am confident our medical team did everything they could to help her and provide compassionate treatment while she was in our care.”

“We are saddened by outcomes like Ms. Anderson’s,” Alexander wrote, “and fully support efforts by our state and mental health professionals to refine our mental health system.”

Eight of the nine counties where people died as they went through the commitment process, including Marshall County, still jail those people. Quitman, where Scipper works, no longer does.

Do you have a story to share about someone who went through the civil commitment process in Mississippi? Contact Isabelle Taft at itaft@mississippitoday.org or call her at (601) 691-4756.

by Debbie Cenziper, ProPublica, and Michael D. Sallah and Michael Korsh, 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.

In 2021, after Philips Respironics sold millions of defective medical devices to those who struggle to breathe, the federal agency charged with protecting the health of the American public swept in.

The Food and Drug Administration accused the global powerhouse of a succession of mistakes — casting aside test results and health risks — long after the company discovered an industrial foam embedded in its breathing machines could break down and send tiny particles and fumes into the lungs of patients.

The FDA maintains that it acted as soon as it learned of the safety concerns in April 2021, just weeks before Philips launched one of the largest recalls of its kind.

But a ProPublica and Pittsburgh Post-Gazette investigation found that in the years leading to the recall, the FDA repeatedly failed one of its most critical missions: alerting the public about devices that can inflict serious harm. Over the course of a decade, the agency missed a pattern of warnings from health care workers, patients and others that something was very wrong with the company’s popular sleep apnea devices and ventilators.

From 2011 to 2021, Philips sent hundreds of complaints about the machines to the FDA, none of which resulted in alerts to doctors or patients. One report described a “black powder substance” inside a ventilator. Another noted foam that was “loose and tangled.”

Scores specifically cited “contamination,” a red flag that experts say should have prompted an immediate inquiry because the machines send air directly into the noses and mouths of users, including infants and the elderly. It is unclear who, if anyone, read the reports at the agency.

After the recall, the FDA said that Philips had held back thousands of additional complaints, compromising a public warning system meant to inform consumers about life-threatening device failures. The FDA allowed the company to submit reports years later, so far without penalty.

The FDA also permitted Philips to submit follow-up reports about those late complaints and update the dates that the company first received them. Then the agency concealed the original dates from the public, obscuring how long Philips had the warnings in hand before turning them over to the government.

“That’s regulatory failure,” said Paul Pelletier, a former federal prosecutor who once led health care probes for the Justice Department. “There is no other way to say it. They dropped the ball.”

ProPublica and the Post-Gazette spent more than a year investigating the Philips CPAP recall and the FDA’s response, analyzing 17 million reports in a complaint-tracking system open to the public that has long served as the backbone of the government’s oversight of medical devices.

Created about three decades ago to detect repeated breakdowns, the system relies on companies whose profits are tied to the success of their products to quickly disclose problems and on the FDA to review the warnings, respond to them and hold device makers accountable when they delay reporting on time or fail to do so at all.

Federal law has long required manufacturers to disclose malfunctions, patient injuries and deaths within 30 days. But since 2010, Philips and other subsidiaries of Dutch parent Royal Philips have been late in submitting at least 60,000 complaints to the FDA — often by years, government records show.

That includes more than 3,700 complaints about the recalled continuous positive airway pressure, or CPAP, machines and ventilators, which a ProPublica and Post-Gazette story reported in September. The delays came as patients using the machines suffered from inexplicable respiratory infections, cancers, liver and kidney problems, and other illnesses — ailments that some medical experts fear are tied to the crumbling foam.

Philips said early on the devices could send potentially “toxic and carcinogenic” material into the masks of patients, and the FDA classified the recall as the most serious, for defects capable of causing severe injury or death.

Philips has a history of withholding complaints about medical devices it manufactures. The FDA’s own inspectors have previously cited the company for failing to turn over reports about safety breakdowns involving widely used CT scanners and defibrillators, public records show. Though the agency can pursue criminal charges for the delays, Philips has never faced such penalties.

The lapses in enforcement have not been limited to Philips.

In analyzing complaints in the government’s tracking system, the news organizations found that other leading device makers have submitted hundreds of thousands of late reports to the FDA, in some cases waiting years before disclosing the information. Last year alone, 1 in 8 reports — more than 232,000 complaints — were submitted past the 30-day deadline, leaving regulators and the public without badly needed safety information.

The FDA has sent warning letters to errant companies, but criminal charges are rare.

The analysis also exposed the troubling use of the FDA directive instructing manufacturers to update the dates they became aware of potential defects when providing follow-up reports to the agency.

A review of more than 100,000 complaints submitted since 2013 by two dozen large medical device makers showed that dates were changed on 1 in 5 reports, including those about flawed pacemakers, prosthetics, dialysis machines, and even screws and plates for bones.

The news organizations found the discrepancies in the dates after obtaining the original reports from a private company that stores FDA data and comparing them to the reports as they appear in the agency’s public database.

Medical experts and lawyers who rely on an accurate timeline of breakdowns say that permitting companies to submit late reports or change dates undercuts the nation’s primary system for tracking the safety of medical devices.

“I never imagined that this would be allowed,” said Madris Kinard, a former FDA analyst who was brought in to fix the system in 2010 and quit four years later. “It boggles the mind.”

In a statement, the agency acknowledged that device makers are directed to replace original dates when updating reports in the system but said copies of earlier versions — not available in the public tracking system — are kept separately at the agency.

The FDA did not respond to questions about why such a policy is in place but said that the tracking system is “just one source of information” about faulty medical devices.

The Food and Drug Administration in Silver Spring, Maryland (Aaron M. Sprecher via AP)

The agency defended its handling of the Philips recall, saying officials continue to “take steps to protect the health and safety of individuals using these devices.”

The FDA said it received complaints about “general contamination issues” before the recall but that the debris could have been caused by external sources unrelated to degrading foam. Complaints that specifically described problems with the foam did not indicate that any patients had been harmed, the agency said. The FDA said all complaints are read but did not specify when it reviewed them.

More than two years after the recall, Philips maintains that patient safety is a top priority and its machines are unlikely to cause “appreciable harm.”

In a statement, the company said that it turned over the late complaints about its breathing machines to the FDA “out of an abundance of caution” and that it did not initially believe the complaints needed to be reported to the government. The company did not say why so many other complaints were reported late. It said the date changes were “consistent with regulatory guidelines.”

Philips and Philips Respironics, the company said, “share the same objectives as the FDA.”

Philips has disclosed that it is in discussions with the agency about a consent decree that could compel the company to make significant improvements. The FDA said it could not comment on potential enforcement action.

Criticism of the agency’s oversight of the industry is not new.

Over the years, the FDA has promised to overhaul the way it detects dangerous medical devices by relying more on real-time data in medical registries, electronic health records, insurance claims and other sources. Under Jeff Shuren, a neurologist and attorney who has long led the FDA unit that regulates devices, the agency has directed millions of dollars to that effort.

But to carry out the plan, the FDA in 2016 turned to an organization whose members include major device makers, such as Philips. The group paid for conferences, consultants, travel and pay for its executives, public records show.

Jeff Shuren, at center-left in 2010, is the country’s top regulator of medical devices. (Daniel Rosenbaum/The New York Times)

Years later, the promised system is still not in place.

“It’s very disappointing that we continue to see delays in public notifications of serious device safety issues from the FDA,” said Dr. Rita Redberg, a cardiologist and expert on medical device safety. “We learn about [problems] after years and years and lots of preventable injuries and deaths. It’s such an avoidable disaster.”

“I Was Just Horrified”

In late 2012, hospitals in three U.S. cities scrambled to contain a disturbing pattern of infections among patients who had undergone exams for digestive illnesses.

Eventually, investigators found the connection: a hollow, lighted tube made primarily by medical device maker Olympus that doctors snake down the throat and stomach to peer at the small intestine.

By the time the maker of the duodenoscope launched a recall about three years later, the FDA had received dozens of reports about deaths, infections and injuries to the bowels and other organs, the ProPublica and the Post-Gazette analysis found.

A Senate investigation in 2016 faulted the FDA and its “outmoded” complaint-tracking system for allowing the crisis to continue well after the devices started sickening patients with virulent infections.

“Preventable tragedies,” a Senate report called the crisis after doctors around the world raced to treat patients. “A vivid example of the failure of FDA’s current system for tracking and monitoring the safety of medical devices on the market.”

The congressional probe came six years after an inspector general’s report found the FDA had allowed warnings about medical devices to sit untouched for weeks or longer.

At the time, about 20 people were assigned to read the complaints, which were kept in an electronic tracking system from the 1990s that couldn’t easily retrieve large numbers of related records or run comprehensive searches for key information. Reviewers often jotted down details about the most alarming cases on Post-it notes and tacked them to their computers.

“A huge number of reports weren’t read,” said Kinard, the former FDA analyst. “I was just horrified.”

Madris Kinard, a former FDA analyst, said the agency’s system to track medical device malfunctions, patient injuries and deaths is inadequate. (Benjamin B. Braun/Pittsburgh Post-Gazette)

As the complaints languished, thousands more came in. The increase was driven partly by the sheer number of products on the market, the vast majority approved through an expedited review process created in the 1970s and championed for years by the industry.

Last year, the FDA received 3 million reports about potentially defective devices — nearly 30 times more than in 2005, government records show. Nearly one-third described injuries and deaths.

The FDA, which regulates more than 200,000 types of medical devices, did not say how many people are currently assigned to screening the reports.

Reports About Medical Device Defects Skyrocketed in Recent Years

Manufacturers are required under federal law to turn over to the FDA reports of patient deaths, injuries and malfunctions that have the potential to cause harm.

Source: Pittsburgh Post-Gazette and ProPublica analysis of data from Device Events, which extracted data from the FDA’s Manufacturer and User Facility Device Experience system.

Amid concerns about the agency’s response time, the inspector general in 2009 faulted the FDA for not cracking down on companies that submitted late reports. In response, the agency pledged to offer “educational assistance” to manufacturers and conduct inspections for chronic offenders.

But years later, device makers have continued to turn over complaints months or years after they came in, ProPublica and the Post-Gazette found.

The FDA has significant power to address defective products or companies that ignore its rules by seeking criminal charges, fines and injunctions.

Olympus pleaded guilty and agreed to pay tens of millions of dollars in 2018 for holding back reports that would have exposed the scale of the problem with its duodenoscopes. Late last year, the company was warned again by the FDA about failing to disclose complaints on time.

Olympus acknowledged that it filed some complaints about duodenoscopes late but said the “disclosure failures” were not tied to patient injuries. The company said it is launching a new global complaints system to address the FDA’s more recent concerns.

“Olympus takes the FDA findings and feedback very seriously,” Olympus said in a statement.

Other companies have escaped penalty.

Device maker Becton, Dickinson and Company did not submit 25,000 reports dating back to 2010 about its defective infusion pumps until the devices were recalled nine years later, government records show. The pumps, linked to scores of injuries and at least one death, were malfunctioning while delivering medication and blood to critically ill patients.

In a statement, the company said that it turned over the late reports after the FDA carried out an inspection in 2020 and that none of the cases involved patient injuries or deaths. The FDA said it took steps to provide information to the public and work with the company.

Public health advocates and patients who have been harmed by defective devices, however, say the FDA too often fails to hold companies accountable.

Tess Schulman, a paralegal in North Carolina, struggled with rashes that her doctor said were caused by Essure, a contraceptive device manufactured by Bayer that was blamed for lost pregnancies and deaths and later pulled from the market.

“Why are we still allowing this to happen?” she asked. “Everybody thinks they are there to protect the public and they would not allow companies to sell something that wasn’t safe. We have a false sense of security.”

In a statement, Bayer said it continues to “stand behind Essure’s safety.”

Beyond the late filings, Olympus updated the dates on follow-up reports submitted to the FDA — more than 2,000 times in the case of its troubled duodenoscope, government records show. In each case, the change made it appear in the FDA’s tracking system as if the company had more recently received warnings when they had actually come in months or years earlier.

Like Philips, the company said it was following instructions from the FDA.

The directive has created vast inconsistencies in a system meant to inform and protect the public. ProPublica and the Post-Gazette found that other companies have often left the original dates intact, despite the FDA’s guidance.

The agency said it has the capability to root out “systemic” reporting problems, but experts say they fear the date changes serve companies seeking to conceal potential violations of the law.

“The risk is obvious,” said Michael Gonzalez, an Ohio lawyer who advises companies on health care compliance. “You don’t take what might be evidence in a case — and even your own culpability — and then alter or change it.”

Kinard, the former FDA analyst, said she discovered about a year ago that the agency had created a pathway for manufacturers to make the changes.

“It is an error on the FDA’s side that is being exploited by manufacturers,” said Kinard, who added that she had no idea the changes were so extensive. “I want to know … who has been taking advantage?”

An Unfolding Crisis

The steady series of reports about contaminated CPAPs and ventilators streaming into the FDA in the years before the Philips recall should have come as no surprise to the government.

The FDA had co-hosted a meeting with the nonprofit Association for the Advancement of Medical Instrumentation about ventilator safety in 2014, raising alarms about how material packed in the devices could contaminate the air quality and send “substances into the patient airway and lungs.”

When Philips finally announced a recall in June 2021, acknowledging the foam fitted in its machines could break down in heat and humidity, the FDA released a series of updates on its website but did not address the warning it had issued years earlier.

The recalled Philips CPAP machines were sold around the world. (Liz Moughon/ProPublica)

The agency also said little about the reports it had been receiving from Philips all along.

One of the first arrived in 2011, describing “black substance in the air path” of a ventilator, records show. Another the next year noted a “significant build up of dust and particulate.” Other reports were more detailed, describing problems with the foam itself. “Foam was found to be deteriorated,” read one report submitted to the FDA in 2020, about seven months before the recall.

It remains unclear whether anyone at the FDA at the time looked at the mounting evidence that something was amiss. The agency has since said that Philips submitted 30 reports between 2011 and April 2021 that specifically described foam degradation.

“We review and take seriously all reports of adverse events associated with medical devices and conduct additional evaluation and analysis when necessary,” the agency said. “We take prompt action and communicate publicly when appropriate.”

There is no evidence, however, that the FDA took any action as a result of the foam complaints or the hundreds of reports that described contamination.

While Philips forwarded some complaints to the government, ProPublica and the Post-Gazette reported that the company withheld thousands of others over a span of 11 years, including reports that described deaths among patients.

It wasn’t the first time Philips held back reports about malfunctioning medical devices.

In 2011, the FDA cited a Philips subsidiary for failing to turn over complaints about faulty imaging scanners, including at least two that reported the machines had caught fire, government records show. That same year, the agency found the company was withholding reports about emergency defibrillators that failed to work when patients with heart problems needed them.

A federal court eventually forced Philips to stop distributing defibrillators in the United States, but the order was lifted in 2020.

All the while, Philips was quietly scrambling to deal with the flurry of complaints about its popular breathing machines. And people were getting sick.

Eleven hundred miles away from Washington, in a trim white house in Baton Rouge, Louisiana, Richard Ieyoub rarely thought about the company behind the CPAP machine he had used for years.

The former attorney general of Louisiana, who helped lead a groundbreaking lawsuit against U.S. tobacco companies that ended in a massive settlement in 1998, was serving out a term as the state’s top oil and gas regulator.

First image: Ieyoub and his wife, Caprice, in 2003. Second image: Caprice Ieyoub wears a necklace with her husband’s fingerprint. (AP Photo/Bill Haber, Liz Moughon/ProPublica)

He was also recovering from a rare form of mouth cancer; doctors had to remove a part of his jaw and then rebuild it during a 17-hour surgery to remove a tumor in 2017. The father of seven spent time in recovery at Jesuit retreats and at a family lake house, sitting by a fire pit and regaling his grandchildren with stories about parents, aunts and uncles who had emigrated from Lebanon and settled in rural Louisiana parishes.

After Philips launched the recall, Ieyoub, like the other CPAP machine users who had grown sick, said he began to question whether the device he had used for hours every night was to blame.

And as the prosecutor who took on the dangerous practices of tobacco companies, he wondered why the federal government did not warn the public years earlier.

“To think that so many people are going to suffer,” he said in an interview last year. “There has to be some kind of accountability.”

Early Warning System

Members of Congress have repeatedly questioned the FDA’s oversight of medical devices, especially in the aftermath of wrenching reports of injuries and deaths. Shuren, the top regulator, has long promised to keep the public safe.

“We will remain vigilant,” he said this year.

But the agency’s use of enforcement tools, including inspections and seizures, has dropped significantly in recent years even as the number of new devices hitting the market reached record levels.

The FDA said gaining entry to manufacturing plants during the COVID-19 pandemic was difficult. But the number of inspections started dropping in 2018, two years before the coronavirus crisis, and continued through last year, FDA data shows.

The number of warning letters, which the FDA considers the “principal means of achieving prompt voluntary compliance,” dwindled to 27 last year, down from 217 in 2012, records show. The use of injunctions and seizures against troubled device makers has also dropped.

The FDA Has Issued Far Fewer Warning Letters to Medical Device Manufacturers

Warning letters are used by the FDA to compel manufacturers to voluntarily comply with federal regulations. The agency has attributed the drop to difficulties gaining access to manufacturing plants during the COVID-19 pandemic.

Source: FDA’s Compliance Dashboard

Shortly after the congressional probe into the Olympus recall in 2016, Shuren and the FDA launched a bold plan.

That year, the agency awarded $3 million in seed money to the nonprofit Medical Device Innovation Consortium to establish a center that would bring together information from electronic medical records, insurance claims and medical registries.

Dubbed NEST, the National Evaluation System for health Technology, the initiative aimed to spur medical device innovation and advance an early warning system that would alert doctors, patients and regulators to device malfunctions actively occurring in medical settings.

Over the course of eight years, the FDA devoted millions of dollars to the effort. The nonprofit paid for travel, consultants, technology and bonuses, and about $400,000 a year in pay for its last executive director, records show. But the group has yet to develop a comprehensive new system.

Patient advocates and others have questioned whether Shuren — one of the most influential voices in the $185-billion-a-year U.S. medical device industry — pushed hard enough to see the plan succeed.

Shuren was the vice chairman of the membership committee at MDIC and has been a board member for years, records show.

One top FDA official said Shuren’s connection to the group, given the deep involvement of industry, has signaled to device makers that they have an ally in the agency responsible for regulating them.

“It smells to high heaven as far as I’m concerned,” said the official, who spoke on the condition of anonymity because he was not authorized to comment publicly.

The FDA said Shuren adheres to all ethics and conflict of interest guidelines. Shuren declined an interview request and to answer written questions.

The FDA noted that representatives from other government agencies are also on the board of MDIC and that a network of hospitals, medical centers, clinics and practitioners is bringing together data about devices. The agency said it requires funding to go directly to building and maintaining the network of partners.

In a statement, MDIC said that NEST, a “sub-group” within the nonprofit, did not receive enough money to build an active surveillance system and that as much as $50 million a year would be needed to do so.

The FDA official, who has long been familiar with the effort, said very little has come out of the project.

“It has been a huge waste of time and money,” the official said. “It was all in the service of industry.”

Public health experts and others said they worry that it’s only a matter of time before another emergency unfolds.

“Everybody at the FDA that I ever worked with — everybody — gets up in the morning and the one thing that they most worry about every day is, ‘Is there something on the market that’s going to hurt anybody?’ Nobody wants that on their heads,” said Larry Kessler, a former FDA official who spent 13 years at the agency before leaving in 2009. “When people’s lives are concerned, you want to take quicker action.”

“Government Is Supposed to Be There”

Ieyoub at his home in Baton Rouge in March, where he spoke to ProPublica and Post-Gazette reporters. He died two weeks later. (Liz Moughon/ProPublica)

Long before his cancer diagnosis, former Louisiana Attorney General Ieyoub often talked to his family about good government. “Government is supposed to be there for people who don’t have a voice,” his son-in-law, Art Murray, recalled Ieyoub saying.

In recent years, the veteran prosecutor compared the Philips case to the battle he fought against tobacco companies in the 1990s. Even then, as the industry used cartoon characters to market cigarettes to children, Ieyoub fretted about the government’s failure to intercede.

“That’s the job of these agencies,” he said.

It’s one of the reasons he grew profoundly distressed after the Philips recall, his family members said.

The Ieyoub family pictured together (Liz Moughon/ProPublica)

Murray said Ieyoub believed the company was determined to keep the problem with its machines secret “and unfortunately a regulatory agency ... fell right into that trap.”

“This is one of those perfect storm situations,” Murray said.

Ieyoub, who had recovered from mouth cancer, died of an aortic aneurysm in April. Known as “Giddie” to his five grandchildren, he was 78.

The FDA’s Flawed Medical Device Tracking System

Since the 1990s, the Food and Drug Administration has been using an electronic system known as MAUDE to track complaints about medical devices. The Manufacturer and User Facility Device Experience is a repository of reports about device malfunctions, patient injuries and deaths. To date, more than 17 million reports have been submitted. Yet the system isn’t working the way it should to warn the public about emerging dangers. Here’s how it’s supposed to work and why the system is failing to live up to its mission.

What the Reporting Requirements Are

Under federal law, device makers are required to submit information about reported malfunctions, injuries and deaths within 30 days. Patients, their family members and others can also voluntarily submit reports. The tracking system is publicly available and includes information such as the type of device involved, the date the manufacturer became aware of the problem, the date the report was submitted to the FDA and a description of any patient symptoms and injuries.

How the System Is Supposed to Work

The FDA is supposed to read the reports and look for patterns — or “emerging signals” — about device breakdowns that can harm the public. Though the FDA uses other sources to pick up on patterns, experts say the MAUDE system remains the cornerstone of the agency’s ability to track dangerous devices, an early warning system meant to save lives. Two-thirds of all recalls and FDA regulatory actions begin with a MAUDE report, according to former FDA analyst Madris Kinard, who spent four years working with MAUDE before leaving the agency. She has since developed a database to better sort and examine the reports.

How the System Actually Works

An investigation by ProPublica and the Pittsburgh Post-Gazette found device makers have repeatedly submitted reports after the 30-day deadline, in some cases waiting months or years before forwarding them to the FDA. Reporters also discovered that the FDA directs device makers to update the dates they first became aware of a defect when submitting follow-up information to the government. The new dates are put into the agency’s public tracking system, overriding original dates and obscuring how long companies had the warnings in hand before turning them over to the government.

How We Uncovered a Hidden Flaw in the FDA’s Medical Device Warning System

To report this story, ProPublica and the Pittsburgh Post-Gazette analyzed a database of more than 17 million complaints about medical device malfunctions, patient injuries and deaths submitted to the U.S. Food and Drug Administration’s Manufacturer and User Facility Device Experience, or MAUDE, tracking system. Because the FDA system is cumbersome and difficult to navigate, the news organizations paid for a subscription to a proprietary database of MAUDE reports called Device Events, developed by former FDA analyst Madris Kinard.

Reporters used these government records to better understand the reporting practices of Philips Respironics and more than two dozen other large medical device manufacturers. The records showed how often companies, including Philips, submitted timely reports about potentially dangerous devices to the government and how often the reports were late.

During this analysis, reporters discovered that the FDA directs device makers to update the dates they first became aware of a defect when submitting follow-up information to the government. The new dates are put into the agency’s public tracking system, overriding original dates and obscuring how long companies had the warnings in hand before turning them over to the government.

In a first-of-its-kind analysis, reporters compared the dates on file in the government’s public tracking system to the dates on the original reports, which were maintained by Device Events. In all, the news organizations compared the dates on more than 100,000 reports from more than two dozen companies dating back to 2013.

Students at Northwestern University’s Medill Investigative Lab helped read and sort hundreds of the reports.

To better understand the FDA’s ability to monitor its tracking system and respond to problem devices, the reporting team interviewed current and former FDA administrators, quality assurance experts for medical device companies as well as public health practitioners who have studied and written about the agency. Over the course of the investigation, the team also examined years of FDA warning letters, inspections, recall notices and safety alerts along with Department of Justice consent decrees and criminal filings.

Reporting was contributed by Mike Wereschagin and Evan Robinson-Johnson of the Pittsburgh Post-Gazette and Monica Sager, Susanti Sarkar, Madaleine Rubin, Molly Burke, Aidan Johnstone, Kelly Adkins, Haajrah Gilani and Juliann Ventura of the Medill Investigative Lab.

by Seth Freed Wessler

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 was produced in a partnership between ProPublica and The New York Times Magazine.

This story is exempt from our Creative Commons license until Jan. 6, 2024.

Tcherry’s mother could see that her 10-year-old son was not being taken care of. When he appeared on their video calls, his clothes were dirty. She asked who in the house was washing his shirts, the white Nike T-shirt and the yellow one with a handprint that he wore in rotation. He said nobody was, but he had tried his best to wash them by hand in the tub. His hair, which was buzzed short when he lived with his grandmother in Haiti, had now grown long and matted. He had already been thin, but by January, after three months in the smuggler’s house, he was beginning to look gaunt. Tcherry told his mother that there was not enough food. He said he felt “empty inside.”

More strangers, most of them Haitian like Tcherry, continued to arrive at the house in the Bahamas on their way to the United States. One day police officers came with guns, and Tcherry hid in a corner; they left when a man gave them money. The next time he and his mother talked, Tcherry lowered his bright, wide-set eyes and spoke to her in a quieter voice. “It was like he was hiding,” his mother, Stephania LaFortune, says. “He was scared.” Tcherry told her he didn’t want to spend another night on the thin mattress in the front room with scuffed pink walls. She assured him it would be over soon. A boat would take him to Florida, and then he would join her in Canada, where she was applying for asylum. LaFortune texted Tcherry photos of the city where she lived. The leaves had turned brown and fallen from the trees. Still, she was there, and that’s where Tcherry wanted to be. He waited another week, then two, then three.

Tcherry didn’t laugh or play for months on end, until one day in February, when two sisters, both Haitian citizens, were delivered to the house. One was a 4-year-old named Beana. She wore a pink shirt and cried a lot. The other, Claire, was 8. She had a round face and a burn on her hand; she said that at the last house they’d stayed in, a girl threw hot oil on her. Claire did everything for her sister, helping her eat, bathe and use the bathroom. Like Tcherry, the girls were traveling to join their mother, who was working at a Michigan auto plant on a temporary legal status that did not allow her to bring her children from abroad. Their clothes were as dirty as his. Sometimes Tcherry and Claire watched videos on his phone. They talked about their mothers. “I am thinking about you,” Tcherry said in a message to his mother in early February. “It has been a long time.”

Finally, nearly four months after Tcherry arrived at the house, one of the men in charge of the smuggling operation woke him and the two girls early in the morning. “He told us to get ready,” Tcherry recalls. With nothing but the clothes they wore, no breakfast or ID, they were loaded into a van and were dropped off at a trash-lined canal just outside Freeport, Bahamas. In the muck and garbage, more than 50 people stood waiting as a boat motored toward them. “Not a good boat,” Tcherry told me, “a raggedy boat.” But nobody complained. The 40-foot vessel tilted from the weight as people climbed aboard and pushed into the two dank cabins, sitting shoulder to shoulder or standing because there was no more space. Tcherry felt the boat speeding up, taking them out to sea.

For almost 12 hours they traveled west, packed together in cabins that now smelled of vomit and urine. In the lower cabin, a baby was crying incessantly. A heavily pregnant woman offered up the last of her package of cookies to the child’s mother to help soothe the infant. Tcherry was thirsty and exhausted. Not far from him, he heard a woman say that the children’s parents must be wicked for sending them alone into the sea.

The passengers had been promised they would reach U.S. shores hours earlier. People were starting to panic, sure that they were lost, when passengers sitting near the windows saw lights, at first flickering and then bright — the lights of cars and buildings. “That is Florida,” a young man said as the boat sped toward shore. Tcherry pulled on his sneakers. “If I make it,” he thought, “I will spend Christmas with my family.”

But as quickly as the lights of Florida came into view, police lights burst upon them. A siren wailed. People screamed, a helicopter circled overhead and an officer on a sheriff’s boat pointed a long gun toward them. Uniformed men climbed on board, yelled orders and handed out life jackets. The group of 54 people was transferred to a small Coast Guard cutter. As the sun rose over Florida just beyond them, a man with a tattoo on his arm of a hand making the sign of the benediction began recording a video on his phone. “As you can see, we are in Miami,” he said. “As you can see, we are on a boat with a bunch of small children.” He intended to send the video to relatives waiting for him on land, and he urged them to contact lawyers. But his phone was confiscated, and the video was never sent.

The Coast Guard frames its operations in the sea as lifesaving work: Crews rescue people from boats at risk of capsizing and pull them from the water. But the agency, which is an arm of the Department of Homeland Security, also operates as a maritime border patrol, its ships as floating holding facilities. Since the summer of 2021, the Coast Guard has detained more than 27,000 people, a number larger than in any similar period in nearly three decades. On a single day in January, the agency’s fleet of ships off the Florida coast collectively held more than 1,000 people. The public has no way of knowing what happens on board. Unlike at the U.S.-Mexico border, which is closely monitored by advocates, the courts and the press, immigration enforcement at sea takes place out of public view.

The Coast Guard routinely denies journalists’ requests to witness immigration patrols, but in early March, I learned that several days earlier, a boat carrying dozens of Haitians had been stopped so close to land that they were first chased down by the Palm Beach County sheriff’s marine unit. Among them were three unaccompanied children: two young sisters and a 10-year-old boy. In the months afterward, I obtained a trove of internal Coast Guard documents, including emails and a database of the agency’s immigration interdictions, and I tracked down Tcherry, Claire and Beana and 18 people traveling with them. Many of them told me about the five days they spent detained on Coast Guard ships — an experience, one man said, “that will remain a scar in each person’s mind.”

People intercepted at sea, even in U.S. waters, have fewer rights than those who come by land. “Asylum does not apply at sea,” a Coast Guard spokesperson told me. Even people who are fleeing violence, rape and death, who on land would be likely to pass an initial asylum screening, are routinely sent back to the countries they’ve fled. To try to get through, people held on Coast Guard ships have occasionally taken to harming themselves — swallowing sharp objects, stabbing themselves with smuggled knives — in the hope that they’ll be rushed to emergency rooms on land where they can try to claim asylum.

The restrictions, combined with the nearly 30-year spike in maritime migration, created a crisis for the Coast Guard too, leading to what one senior Coast Guard official described in an internal email in February as “war-fighting levels of stress and fatigue.” Coast Guard crew members described to me their distress at having to reject desperate person after desperate person, but the worst part of the job, several said, was turning away the children who were traveling alone. From July 2021 to September 2023, the number of children without parents or guardians held by the Coast Guard spiked, a nearly tenfold increase over the prior two years. Most of them were Haitian. “The hardest ones for me are the unaccompanied minors,” one crew member told me. “They’re put on this boat to try to come to America, and they have no one.”

Coast Guard Petty Officer Timothy James holds a baby who was detained on the U.S. Coast Guard cutter Manowar. The girl and dozens of others were held at sea for five days. (Officer Brodie MacDonald/U.S. Coast Guard)

The treatment of children is perhaps the starkest difference between immigration policy on land and at sea. At land borders, unaccompanied minors from countries other than Mexico and Canada cannot simply be turned back. They are assigned government caseworkers and are often placed in shelters, then with family members, on track to gain legal status. That system has its own serious failings, but the principle is that children must be protected. Not so at sea. U.S. courts have not determined what protections should extend to minors held on U.S. ships, even those detained well within U.S. waters. The Coast Guard says that its crew members screen children to identify “human-trafficking indicators and protection concerns including fear of return.” A spokesperson told me that “migrants who indicate a fear of return receive further screening” by Homeland Security officials.

But of the almost 500 unaccompanied children held on the agency’s cutters in the Caribbean and the Straits of Florida between July 2021 and early September 2023, five were allowed into the U.S. because federal agencies believed they would face persecution at home, even amid escalating violence in Haiti, including the documented murder and rape of children. One other child was medically evacuated to a hospital in Florida, and six were brought to land for reasons that the internal Coast Guard records do not explain. The rest were delivered back to the countries they left, and it’s often unclear where they go once they return. Some have nowhere to stay and no one to take care of them. On occasion, they are so young that they don’t know the names of their parents or the country where they were born. One official from an agency involved in processing people delivered by the U.S. Coast Guard to Haiti told me “it is an open secret” that the process can be dangerously inconsistent. “Children leave the port,” the official said, “and what happens to them after they leave, no one knows.”

Stephania LaFortune in her Toronto apartment (Octavio Jones for ProPublica)

Stephania LaFortune had not wanted to send her 10-year-old son on a boat by himself. She knew firsthand how perilous the journey could be. In May 2021, before the boat she had boarded made it to a Florida beach, some of the passengers jumped into the water to wade through the heavy waves. “They almost drowned,” she told me when I met her in Toronto. LaFortune waited on the beached vessel until U.S. Border Patrol officials came to detain her. In detention, she claimed asylum and was soon released. For months, she searched for other ways to bring Tcherry to her, but LaFortune ultimately determined she had no alternative.

The first time LaFortune left Tcherry, he was 3 years old. Her husband, a police cadet, had been shot in his uniform and left to die in a ditch outside Port-au-Prince, and LaFortune, fearing for her life, departed for the Bahamas. Tcherry stayed behind with his grandmother. Four years later, as violence began to flare again, Tcherry’s mother finally made good on her promise to send for him. She arranged for him to fly to the Bahamas, where she had remarried and had a baby girl. But Tcherry was in the Bahamas not even a year when LaFortune told him that she would be leaving again — not because she wanted to, she assured her sobbing son, but because she had seen how Haitians were harassed and deported, and she simply didn’t believe there was real opportunity there. Tcherry’s stepfather and his younger half sister, who were Bahamian citizens, joined LaFortune months later. She arranged for Tcherry to live with relatives, promising to send for him as soon as she could.

LaFortune’s asylum case in Florida dragged on, so she and her husband and daughter traveled over land to Canada, where they hoped they could get legal status more quickly. While they waited for a decision in their asylum case, the relative Tcherry was staying with said he could no longer take care of a growing boy by himself. After begging others to take her son, LaFortune found a woman she knew back in Haiti who said she was planning to make the trip to Florida herself with her own children. For $3,000, the woman said, she could take Tcherry with them. LaFortune sent the money. The woman took Tcherry to the smuggler’s house and did not return for him.

That house, and the one where Tcherry was moved next, were filled with Haitians fleeing the crisis that began in July 2021, when President Jovenel Moïse was assassinated by a team of mostly Colombian mercenaries hired through a Miami-area security company. The U.S. Justice Department has accused nearly a dozen people, some based in the United States, of setting the assassination in motion. As the Haitian state crumbled, proliferating gangs, many with ties to the country’s political elite, burst from the neighborhoods they’d long controlled and began terrorizing Port-au-Prince and swaths of the rest of the country. Kidnapping, extortion, the rape of women and children, and the torching of homes and neighborhoods became routine weapons of fear. Thousands have been murdered, and in June the United Nations estimated that nearly 200,000 have been internally displaced. Haitians able to gather the resources have left however they can. Many have traveled over land to the Dominican Republic or by air to South and Central America. And thousands have boarded boats bound for the beaches of Florida.

The people on the vessel with Tcherry had reasons, each as urgent as the next, for being there. There was a 31-year-old street vendor whose Port-au-Prince neighborhood had been taken over by gangs; she said that when she tried to flee north by bus, men with guns forced her and other women off the bus and raped them. A man from a district in the north said he’d been beaten more than once by thugs sent by a political boss he’d opposed; both times they threatened to kill him. A man who worked as a Vodou priest in Port-au-Prince said he left because he needed money for his sick daughter, and gangs were confiscating his wages. The pregnant woman who helped comfort the crying baby said she had been kidnapped and raped; she was released only after her family sold land and collected donations to pay for her ransom. Two women were traveling with their daughters, but Tcherry, Claire and Beana were the only young children traveling alone.

Tcherry sat on the deck of a Coast Guard cutter called the Manowar along with the rest of the group, exhausted, scared and confused. Nobody had explained to him what would happen next. Crew members in blue uniforms finally gave them food, small plates of rice and beans, and began to search their belongings and run their photos and fingerprints through federal immigration and criminal databases. Tcherry and the sisters followed the orders of a crew member with blond hair, cut like the soldiers in movies Tcherry had seen, to sit in the shaded spot under the stairs to the bridge.

On the stern of the cutter, a man in his early 30s named Peterson sat watching the children. He had crossed paths with them weeks earlier in one of the houses; seeing they were hungry, he had brought them extra slices of bread and even cut Tcherry’s hair. Claire reminded him of his own young daughter in Haiti. Peterson had not wanted to leave his child, but gangs had recently taken control of roadways not far from his home in the coastal city of Saint-Marc. He had not earned a decent wage for many months, not since he lost his job as a driver at a missionary organization. He had decided to leave for the United States so he could send money back to Haiti for his daughter, who remained behind with her mother.

Now it occurred to Peterson that his connection to Tcherry and the girls could work to his advantage. Surely the Coast Guard wouldn’t return children to Haiti, he thought. Surely they wouldn’t separate a family. “I thought that there might be an opportunity for me to get to the U.S.,” he told me. He approached Tcherry, Claire and Beana and told them they should tell the crew he was their uncle.

Peterson’s small kindness in the smuggler’s house had given Tcherry reason to trust him. When it came time for the blond-haired crew member, Petty Officer Timothy James, to interview the children, Peterson stood close behind. With the help of another Haitian man who spoke some English, Peterson told James that he was their uncle. James asked the children if it was true. Tcherry and Claire, both timid, their eyes lowered, said it was. Beana was too young to understand. James handed her a brown teddy bear, which the crew of the Manowar keeps on board because of the growing number of children they detain, and sent the children back to the stern.

But no more than a couple of hours later, Peterson changed his mind. He’d noticed that the pregnant woman had been evaluated by Florida EMTs, and he moved over to offer her a deal: If she would tell the crew he was her husband and let him join her if they brought her to land, his brother in Florida, who already paid $6,000 for his place on this boat, would make sure she was compensated. “I helped her understand that that is something she could profit from,” he says. The woman agreed, and Peterson, who now needed to tell the truth about the children, divulged to a crew member that he was not their uncle. “I was just trying to help if I could,” he said.

James crouched down beside the children again and told them not to lie. “Why did you leave your home to go to the United States,” he read off a questionnaire. “To go to my parents,” Tcherry replied. To Tcherry, the questions seemed like a good sign. He was unsure whether he could trust these crew members after the officer on the sheriff boat pointed a long gun at them the night before. “I thought they were going to shoot me,” Tcherry says. But James calmly directed the children to sit in the one shaded place on the boat, and gave them cookies and slices of apple. “He was nice,” Tcherry says — the nicest anyone had been since Peterson brought them bread in the house.

James kept reading the form. “What will happen when you get there?” he asked. Tcherry looked up. He latched onto the words “when you get there” and took them as a promise. He asked James when they would be on land. James said the same thing he told everyone on the boat: that the decision was not up to him, that he was just doing his job. Tcherry was convinced James would send him and Claire and Beana to their mothers. He thought of the story his mother had told him about his father’s murder, his body in a ditch by the road, and of his last memory of Haiti, when he passed through a gang checkpoint on the way to the airport. “I saw bandits approaching toward us, and he had a gun pulled,” Tcherry told me. “My heart started beating fast, and I thought he was going to shoot.” He was overwhelmed with relief that he would never have to go back there.

A boat came to bring someone to land. But it was not there to pick up Tcherry or the other children. A Coast Guard medical officer had reviewed the pregnant woman’s vitals and made a decision that because she “may go into labor at any moment,” she would be brought to a hospital in Palm Beach County accompanied by U.S. Customs and Border Protection. Before she was taken away, Peterson said the woman told him she would not claim to be married to him after all. She didn’t want a stranger on her baby’s birth certificate. She offered to say she was his cousin. “I knew that being the cousin would not be enough,” Peterson recalls, “and I have to say that I lost hope.”

The pregnant woman disappeared on a small boat toward land. Those left on the stern began to talk among themselves, asking why the baby, who had barely stopped crying, and the other children had been left aboard the cutter. They said they could not keep going like this, eating only small portions of scarcely cooked and saltless rice and beans, unable to bathe and forced to urinate and defecate in a toilet seat attached to a metal box with a tube off the side of the open deck. They decided they would rise in unison and protest, and they passed the word from one to the next. At around 9 p.m., dozens of people began to yell toward the bridge demanding interpreters, lawyers or just to know what would become of them. From the bow where he stood, James heard faint yelling, and then the voice of the officer in charge over the loudspeaker. “They’re starting an uprising on the fantail,” he said. “I need you back there.”

Timothy James came from a conservative family in a conservative little town in the mountains of North Carolina. He and his wife held handguns aloft in their wedding photos, and his first job after dropping out of college was as a sheriff’s deputy at the jail. James joined the Coast Guard in 2015. “My main goal,” he told me, “was to chase down drug runners and catch migrants” — two groups that were more or less the same, as far as he understood.

James has been in the Coast Guard since 2015. (Seth Wessler/ProPublica)

He’d been on the job no more than a few weeks before his expectations were upended. “I had no idea what I was talking about,” he told me. There was much less “running and gunning, catching bad guys” than he’d anticipated. Instead, the people he detained would tell him their stories, sometimes with the help of Google Translate on his phone, about violence and deprivation like he had never contemplated. People described what it was like to live on $12 a month. There were children and grandmothers who could have been his own, and young men not so unlike him. They were not trying to infiltrate the country as he’d thought. They were running because “they didn’t have another option,” he says.

James and his colleagues learned the lengths people would go to try to get to land. Since last fall, people detained on cutters have pulled jagged metal cotter pins, bolts and screws from the rigging and swallowed them, apparently trying to cause such severe injury that they’d be taken to a hospital. Last August, near the Florida Keys, three Cuban men were reported to the Coast Guard by a passing towboat operator; most likely fearing they would be brought back to Cuba, they stabbed and slashed their legs with blades and were found in puddles of blood. In January, a man plunged a five-inch buck-style knife that he’d carried onto a cutter into the side of his torso and slashed it down his rib cage. The crew taped the knife to the wound to stop him from bleeding out as he fell unconscious. Most of these people were delivered to Customs and Border Protection and rushed to hospitals on land, where they probably intended to claim asylum. By the time James began working as operations officer on the Manowar last summer, he and other crew members started every leg at sea by scouring the decks for anything that people might use to harm themselves. (According to a DHS spokesperson, “medical evacuations do not mean that migrants have a greater chance of remaining in the United States.”)

People detained on cutters have in rare cases threatened to harm Coast Guard members or others they’re traveling with. In January, a group the Coast Guard detained pushed crew members and locked arms to stop their removal to another cutter, according to an internal record. That same month, a group of Haitians held children over the side of a boat, “threatening to throw them overboard and set them on fire” if the Coast Guard came closer. Weeks later, a group of Cubans brandished poles with nails hammered into them and tried to attack an approaching Coast Guard boat. Conflicts between crew and those they detain have escalated to the point that Coast Guard members have shot people with pepper balls and subdued others with stun maneuvers.

James tensed as he heard the order over the loudspeaker. He thought of the crowd-control techniques he’d learned to immobilize someone, and stepped down the side walkway toward the stern. In front of him were dozens of angry men and a few women, yelling in Haitian Creole. James hesitated and then walked forcefully up to the group, his hands pulled into his sides as if he were ready to throw a punch. Instead, he took a knee. He gestured to the men around him to come join him. He spoke into a cellphone in English, and on the screen he showed them the Google Translate app: “You’ve got to tell everybody to calm down,” it read in Creole. “I can’t help you if I don’t know what’s going on.”

Before they could respond, five other crew members came down the stairs, plastic zip ties and batons hanging from their belts. Tcherry was sitting under the stairs, beside Claire and Beana, who had not let go of the teddy bear. “Shut up, shut up,” one of the crew told the protesters as he stepped in front of Tcherry. “One of them said he was going to pepper-spray their eyes and handcuff them,” Tcherry says. James told his colleagues to wait. The yelling in English and Creole grew louder. A man to Tcherry’s left began to scream and roll on the ground, and then he rolled partway under the handrail. A crew member grabbed the man by the back of the pants and hauled him up. James secured his wrist to a post on the deck. “Nobody’s dying on my boat today,” James said.

Above Tcherry, another crew member stepped onto the landing at the top of the stairs. He held a shotgun and cocked it. James claims that the gun was not loaded, but the threat of violence had its intended effect. The protesters stepped back and went quiet.

James kept speaking into the phone. “What do you want?” he asked the men.

“If we go back, we’re dead,” one man replied. They said they could not endure being on the boat much longer.

“If it were up to me, we’d be taking you to land,” James said. “But it is not up to us.” There was a process to seek protection, he told them. “But what you’re doing now is not that process.”

Coast Guard crews do not decide who will be offered protection and who will be sent back. Their responsibility is only to document what the agency calls “manifestation of fear” (MOF) claims. The Coast Guard instructs them to make note of such claims only when people proactively assert them or when they observe people exhibiting signs of fear, such as shaking or crying. They are not supposed to ask. That may help explain why the agency has logged only 1,900 claims from more than 27,000 people detained in this region between July 2021 and September 2023. Fewer than 300 of those came from Haitians, even though they make up about a third of people held on cutters. Officials in the Coast Guard and in U.S. Citizenship and Immigration Services told me that Haitians face a systemic disadvantage in making a successful claim for protection: Almost no one working on Coast Guard boats can speak or understand Creole. (The Coast Guard told me it has access to contracted Creole interpreters aboard cutters.)

Regardless of the person’s nationality, the process is nearly always a dead end. Each person who makes a claim for protection is supposed to be referred to a U.S. Citizenship and Immigration Services officer, who conducts a “credible fear” screening by phone or in person on a cutter. Between July 2021 and early September 2023, USCIS approved about 60 of the approximately 1,900 claims — around 3%. By contrast, about 60% of asylum applicants on land passed a credible-fear screening over roughly the same period. Unlike on land, people who are denied on ships have no access to courts or lawyers to appeal the decision. And the few who are approved are not sent to the United States at all. Should they choose to proceed with their claims, they are delivered to an immigration holding facility at the U.S. naval base at Guantánamo Bay, where they are evaluated again. They’re told they should be prepared to wait for two years or more, until another country agrees to take them as refugees. Only 36 of the people with approved claims agreed to be sent to Guantánamo. The State Department says there are currently no unaccompanied minors held at the Migrant Operations Center at Guantánamo, but a recent federal contract document says that the facility is prepared to accept them.

A Haitian coast guard station in Cap-Haïtien where repatriated Haitians are returned from sea (Octavio Jones for ProPublica)

The Manowar crew had been tasked by the local Coast Guard office with logging any requests for protection. But the night after the protest had been too chaotic and exhausting for them to do so. In the morning, a larger cutter with more supplies arrived. The people detained on the Manowar would be transferred to that boat. Before they departed, James told them that anyone who intended to seek protection should seek help from the crew on the next boat. “Tell them, ‘I’m in fear for my life,’ just like you told me,” he said. “You tell whoever is processing you that specific thing.”

But subsequent crews logged no such claims, according to records I obtained. One man told me that, in response to his plea for protection, an officer on the next boat wrote a note on a piece of paper, but nobody ever followed up. Another said that an officer told him their claims would be heard later. But there were no more interviews. “We had no opportunity,” a woman in the group says. When I asked the Coast Guard about this, a spokesperson told me the agency meticulously documents all claims. “Since we do not have a record of any of those migrants communicating that they feared for their lives if returned to Haiti, I cannot say that they made MOF claims while aboard,” he said.

Tcherry fell asleep on the larger cutter and woke at around dawn to commotion. He saw an EMT pressing on the chest of a middle-aged woman who lay several yards away from him. She had been moaning in pain the night before. The crew member keeping watch had found her dead, her nose and mouth covered in blood. Another Haitian woman began to sing a hymn as the EMT performing CPR cried. A small boat took the woman’s body away and then returned for another man who had been complaining of pain and could not urinate. “I thought they would take us to land after the woman had died,” Tcherry says. “I thought they would let us go.” But that afternoon, he was transferred to yet another cutter that pulled away from Florida and into the high seas. Tcherry finally understood he was being sent back.

The Coast Guard was first deployed as a maritime border-patrol agency to stop an earlier surge of migration from Haiti. In 1981, President Ronald Reagan made a deal with Jean-Claude Duvalier, the Haitian dictator, that allowed the Coast Guard to stop and board Haitian boats and deliver those detained directly back to Haiti. They would be processed on Coast Guard cutters, far from lawyers who could review their cases. The order, advocates argued at the time, undermined U.N. refugee protections and a U.S. refugee-and-asylum law that Congress passed just the year before. “This effort to push borders into the world’s oceans was new, and it marked a perverse paradigm shift,” Jeffrey Kahn, a legal scholar at the University of California, Davis, wrote recently.

A decade after the Reagan agreement, as Haitians again departed en masse following a military coup, the George H.W. Bush administration further buttressed the sea wall. Bush signed an order that said federal agencies had no obligation to consider asylum claims from Haitians caught in international waters, no matter the evidence of danger or persecution. Lawyers and activists protested, calling the maritime regime a wholesale abdication of human rights doctrine. But the Bush order still stands. By the mid-1990s, its reach expanded to nearly anyone of any nationality caught in the sea, whether out in international waters or a couple of hundred feet from the beach.

Pushing migrants and refugees away from the land borders to avoid obligations under law has now become common practice. In the United States, consecutive policies under Presidents Barack Obama, Donald Trump and Joe Biden have attempted to cast whole swaths of the land south of the border as a legal no-man’s land like the ocean. They have outsourced deterrence, detention and deportation to Mexico and Central America. Trump and Biden have sought to bar people from seeking asylum if they don’t first try to apply for protection in countries they pass through on their way to the United States. Europe, for its part, has pushed people coming by boat through the Mediterranean back to North African shores, where countries have imposed brutal regimes of deterrence.

None of those measures have prevented the latest wave of migration from the Caribbean. In January, amid a generational spike in Haitians and Cubans held on their cutters, the Coast Guard acknowledged that crew members were reaching a breaking point. “We are in extremis,” a senior official wrote to colleagues in a widely circulated internal email in January. “I know you and your teams are pushed beyond limits.” The head of the Coast Guard for the eastern half of the United States, Vice Adm. Kevin Lunday, wrote in February to colleagues that two outside experts had told him their crews were under extreme stress similar to the levels experienced in “sustained combat operations.”

Coast Guard members told me they had become accustomed to retrieving corpses from capsized boats, worn down by water or gnawed on by sharks. It was not uncommon to walk down a stairway or into a bunk room and come upon a crew member sobbing. Crew members waited months for mental health appointments, and the agency was talking openly about suicide prevention. “I don’t see how the current level of operations is sustainable,” Capt. Chris Cederholm, the commander of U.S. Coast Guard Sector Miami, wrote to colleagues, “without the breaking of several of our people.” Some were struggling with what one former crew member called a “moral dilemma,” because they had begun to understand that the job required them to inflict suffering on others. “We hear their stories, people who say they’d rather we shoot them right here than send them back to what they’re running from,” one Coast Guard member says. “And then we send them all back.”

Tim James told me he tried to take his mind off the job by lifting weights and frequenting a cigar bar where service members and cops go to talk about “the suck,” but he soon realized he needed more than weights or whiskey to reckon with the mounting stress, even despair. “I go home, and I feel guilty,” he told me, “because I don’t have to worry about somebody kicking in my front door, you know, I don’t have to worry about the military roaming the streets.” He sought mental health support from a new “resiliency support team” the agency created. But James had not been able to shake the memories of the children he detained, particularly one 7-year-old Haitian girl with small braids. She’d been wearing shorts and a tank top, her feet were bare and she smiled at James whenever their eyes caught. “My mom is dead,” she told James with the help of an older child who spoke a little English. “I want to go to my auntie in Miami.”

In the girl’s belongings the crew found a piece of paper with a phone number she said was her aunt’s. After James interviewed her, they sent her unaccompanied-minor questionnaire to the district office in Florida, and they waited for instructions on what to do with her. Out on the deck, James couldn’t help hoping she’d be taken to shore, to her aunt. But late in the morning the next day, the crew received a list from an office in Washington, D.C., of the people to be sent back. The girl was on the list. James cried on the return trip to port. One of his own daughters was about the girl’s age. “I can’t imagine sending my 7-year-old little kid across an ocean that is unforgiving,” James told me, nearly in tears. “I can’t imagine what my life would be like to have to do that.”

That was just weeks before he encountered Tcherry, Claire and Beana. So when Peterson admitted the children were alone, the news came as a blow. “It’s a pretty hard hit when you think the kids have somebody and then it turns out that they really don’t,” James told me. He could see that Tcherry thought he would be making it to shore. “To see the hope on his face and then have to kind of turn around and destroy that is tough,” James told me. He never learns what becomes of the people he transfers off his cutter: that the pregnant woman gave birth in a hospital to a healthy boy and has an asylum case pending; that the body of Guerline Tulus, the woman who died on the cutter of what the medical examiner concluded was an embolism, remains in a Miami morgue, and that authorities have not identified any next of kin. He does not know what happened to the three children after they were sent back, but many months later, he says, he still wonders about them.

Tcherry followed Claire and Beana up a rickety ramp in the port of Cap-Haïtien, Haiti, past a seized blue and yellow cargo ship into the Haitian Coast Guard station. The ground was littered with plastic U.S. Coast Guard bracelets that previous groups of people had pulled off and thrown to the ground. Officials from the Haitian child-protection authority and the U.N.’s International Organization for Migration watched as Tcherry and the rest of the group disembarked. “They looked scared and they said they were hungry,” a veteran official at IBESR, the Haitian child-protection agency, who was working at the port that day told me. “As a Haitian, I feel humiliated,” he says, “but we can’t really do anything about it. We’ve resigned ourselves.” To him, the people the Americans offloaded in Haiti always looked half dead. “It seems to me that when those children fall in their hands, they should know how to treat them. But that’s not the case.”

A discarded bracelet lies on the ground just outside of a Haitian coast guard station in Cap-Haitien on March 16. (Octavio Jones for ProPublica)

Tcherry’s throat hurt and his legs were weak. He had never felt such tiredness. He ate as much as he could from the warm plate of food the UN provided. Slumped over on a bench, he waited for his turn to use the shower in a white and blue wash shed on the edge of a fenced lot behind the Haitian Coast Guard station. The officials brought several people to a hospital and got to work figuring out what to do with the unaccompanied children.

The U.S. Coast Guard and State Department say that the children they send back are transferred into the hands of local authorities responsible for the care of children. “When we have custodial protection of those children, we want to make sure that the necessary steps are taken,” Lt. Cmdr. John Beal, a Coast Guard spokesperson, told me, “to ensure that when we repatriate those migrants, they don’t end up in some nefarious actor’s custody or something.” But no U.S. agency would explain the actual precautions the U.S. government takes to keep children from ending up in the wrong hands, beyond initial screenings aboard cutters. Last year, the Coast Guard stopped tracking the “reception agency” in each country, because according to the Department of Homeland Security, the U.S. government has set up rules establishing which agencies take these children and no longer needs to track them on a case-by-case basis.

Haitian child-protection officials in Cap-Haïtien say their agency always finds relatives to take children, though sometimes after weeks or months. But the official with one of the other agencies involved in the processing of returned and deported Haitians at the Cap-Haïtien port said this claim is simply not true. The official said that children have departed the port with adults and with older children without any agency confirming they have an actual relationship or connection. “This is a serious concern in terms of trafficking,” the official told me. IBESR said those claims were unfounded. “According to the procedure, every child who leaves the port is accompanied by someone,” the IBESR official said, adding that when possible, the agency follows up with families to make sure children arrive safely. But the agency acknowledged there are limits to the support it can provide because of a lack of resources.

Peterson, who was held on the Manowar, in Cap-Haïtien in March (Octavio Jones for ProPublica)

Before they left the cutter, Peterson told Tcherry and the sisters that he would take care of them until they could contact their parents, who would figure out where they needed to go. Tcherry agreed. Peterson later told me he’d thought carefully about whether he wanted to get involved in the kids’ affairs once they were off the boat. He’d talked to other adults onboard, and they all agreed that someone needed to step up, that the Haitian government was surely not to be trusted. “If I didn’t do it,” Peterson says, “they would remain with the Haitian state, with all the risks that they could’ve faced, including kidnapping.”

Peterson told the child-protection agency that he was the children’s guardian. The officials said they would need to contact the parents to confirm, so Peterson did the only thing he could think to do: He called the man who had been his conduit to the boat out of the Bahamas. The man sent him photos of the children’s IDs and put Peterson in touch with Claire and Beana’s mother, Inose Jean, in Michigan. She screamed and cried with relief upon learning her daughters were alive. Peterson explained that he’d taken care of the girls at sea and he asked her what to do with them. She said she would call back. Two hours later, she instructed Peterson to take the girls to her friend’s house in Cap-Haïtien.

But Peterson still had no number for Tcherry’s mother. So he told the officials that Tcherry was Claire and Beana’s cousin, and that he’d gotten the image of Tcherry’s ID from Inose Jean. At dusk, Peterson walked with the three children through the metal gate of the Haitian Coast Guard station, at once incensed and relieved that he’d been allowed to take them. “The Haitian authorities didn’t talk to the children’s mothers,” Peterson says. “There was not enough evidence to actually prove I was who I was, or to prove a relationship.” They took a taxi to Jean’s friend’s house, and Claire, who recognized the woman from years earlier, rushed into her arms.

The woman agreed to let Tcherry spend a night there. Peterson went to a cheap hotel with spotty electricity and a dirty pool. The man in the Bahamas finally sent Peterson Tcherry’s mother’s number. “I am the person who stood up to care for Tcherry on the boat,” Peterson told LaFortune. She collapsed onto the bed in her room, the only piece of furniture in the Toronto apartment she shared with her husband and her daughter. She had spent the last six days in a terrified daze, calling the people in the Bahamas she’d paid, begging for any news and fighting images in her mind of her son sinking into the sea. The next morning, after Tcherry woke, Peterson called LaFortune again. Tcherry looked weak and his voice was frail and hoarse. “When will I be with you, Mommy?” he asked.

Stephania Lafortune’s husband holds a cellphone as she talks with her son Tcherry in April. (Octavio Jones for ProPublica)

LaFortune did not for a moment consider trying to put Tcherry on another boat. She told him she would wait until she got asylum in Canada and send for him legally. But Haiti was even more dangerous for Tcherry than when he’d left. One man who was detained with Tcherry, whom I interviewed in Haiti two weeks after he returned there, said he feared he would be killed if he left Cap-Haïtien for his home in Port-au-Prince. After he ran through the roughly $50 the U.N. agency gave each of the returnees, which he used for a hotel, he did go back and was attacked on the street as he traveled to a hospital, he said, to get medicine for his daughter. He sent me photographs of gashes on his body. A second man sent me photos of a deep head wound that he suffered during an attack by the very armed men he had said he was running from. Another woman from the boat who told me she fled because she was raped says she is now “in hiding” in Port-au-Prince, living with relatives and her daughter, whom she does not allow to leave the house.

Others on the boat have been luckier. In late 2022, the Department of Homeland Security started an unusually broad new legal-immigration program that now allows Haitians and Cubans, along with Venezuelans and Nicaraguans, to apply for two-year entry permits on humanitarian grounds from their countries, rather than traveling by land or sea first. The Department of Homeland Security says that since the program began, it has processed 30,000 people a month. More than 107,000 Haitians and 57,000 Cubans have been approved for entry, including a man who was detained with Tcherry. On Oct. 18, he stepped off a plane in Fort Lauderdale with a legal entry permit. He made it just under the wire, given the timing of his interdiction in February. In late April, DHS added a caveat to the new program: Anyone stopped at sea from then on would be ineligible to apply to the parole program. The Coast Guard says the new program and the accompanying restriction have caused the numbers of Cubans and Haitians departing on boats to fall back down to their pre-2021 level. “People have a safe and lawful alternative,” Beal, the Coast Guard’s spokesperson in Florida, told me, “so they don’t feel their only option is to take to the sea.”

Tcherry rode a bus with Peterson over the mountains to Saint-Marc. In the stucco house on a quiet street where Peterson lived with his fiancée and her parents, Tcherry struggled to stop thinking about his experience at sea. “When I sleep, when I sit down, I want to cry,” Tcherry told me days after his arrival there. “They had us for five days. We couldn’t eat well, couldn’t sleep well. Couldn’t brush our teeth.” He thought of his body soaked from the sea spray, of the woman who died. Although Peterson assured him it was not true, Tcherry kept wondering if the officers had just thrown her body into the sea. “He is having nightmares about the boats,” Peterson told me a week after their arrival, “reliving the same moment again and again, and he starts crying.”

LaFortune told Tcherry that she was arranging for him to travel to his grandmother in another part of the country. But it soon became clear to her that the roads were too dangerous, spotted with gang and vigilante checkpoints guarded often by men carrying AK-47s. Peterson told LaFortune that Tcherry could stay with him as long as she needed him to. But as the weeks turned to months, Tcherry felt that Peterson began to change. He said Peterson needed money, and he was asking Tcherry’s mother to send more and more. Peterson was frequently out of the house, working odd jobs, and often could not answer LaFortune’s calls. She grew worried. When she did talk to Tcherry, he was as quiet as he was in the smuggler’s house in the Bahamas.

Stephania Lafortune, her daughter and her husband talk on the phone with Tcherry. (Octavio Jones for ProPublica)

Two months passed. LaFortune’s asylum case was denied, and she and her husband appealed. Four more months passed. LaFortune’s husband heard news that gangs were closing in on Saint-Marc. LaFortune decided that they must move Tcherry, that it was time to risk the journey on the roads. In September, she sent an old family friend to collect him. They rode on a bus through a checkpoint where the driver paid a fee to a masked man. “I saw a man holding his gun,” Tcherry says. The man made a sign that they could pass.

Tcherry arrived at a busy bus station in Port-au-Prince and looked for his grandmother. He saw her in a crowd and remembered her face, her high forehead and wide smile. “That is my grandma,” he said, again and again. His mutters turned to song. “That is my grandmother, tololo, tololo, that is my grandmother.” He sank into her arms. He held her hand as they boarded another bus and passed through another checkpoint, back to where he began.

Jason Kao contributed data reporting. Oldjy François contributed research. Alendy Almonor, Myriam Narcisse and Steven Werlin provided translation and interpretation.

by Aliyya Swaby, with research by Mollie Simon

This story mentions attempted suicide.

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.

One Saturday morning in September 2022, Terrence Steyer, the dean of the College of Medicine at the Medical University of South Carolina, placed an urgent call to a student. Just a year prior, the medical student, Thomas Agostini, had won first place at a university-sponsored event for his graduate research on transgender pediatric patients. He also had been featured in a video on MUSC’s website highlighting resources that support the LGBTQ+ community.

Sign up for Dispatches, a weekly ProPublica newsletter about wrongdoing in America.

Now, Agostini and his once-lauded study had set off a political firestorm. Conservative activists seized on one line in particular in the study’s summary — a parenthetical noting the youngest transgender patient to visit MUSC’s pediatric endocrinology clinic was 4 years old — and inaccurately claimed that children that young were prescribed hormones as part of a gender transition. Elon Musk amplified the false claim, tweeting, “Is it really true that four-year-olds are receiving hormone treatment?” That led federal and state lawmakers to frantically ask top MUSC leaders whether the public hospital was in fact helping young children medically transition. The hospital was not; its pediatric transgender patients did not receive hormone therapy before puberty, nor does it offer surgical options to minors.

The dean’s call went to voicemail. A person familiar with the call shared the voice message with ProPublica.

After reassuring Agostini that he had done nothing wrong and wasn’t in trouble, Steyer pressed him for more detail about his research. “I’m really getting some pressure from the state Legislature and the leadership at MUSC,” he said in the message. He asked Agostini to give him “in particular the number of people at each age that was seen and the youngest child who received gender-affirming therapy for transgender issues.” Agostini declined to comment for this story. Steyer did not respond to a request for comment, but an MUSC spokesperson told ProPublica that Steyer wanted to “ensure we had all the facts as the situation was unfolding.”

Excerpt of the Dean’s Voicemail

The day after a student’s research on pediatric transgender patients came under attack on social media, Terrence Steyer, dean of the Medical University of South Carolina’s College of Medicine, left the student a message acknowledging the pressure he was facing from lawmakers and university leaders.

(Obtained by ProPublica)

It had been three months since South Carolina’s Legislature had banned the state’s flagship medical university from using public money to provide any treatment “furthering the gender transition” of children under 16. Before and after the directive went into effect, hospital leaders told lawmakers and reporters that they didn’t use state money to care for transgender patients. And the chief of children’s and women’s care said that the ban would not affect the services the hospital offered, according to an email he sent to colleagues, which was among hundreds of MUSC emails that ProPublica obtained through a public records request.

Then came the blowback from Musk’s tweet. (Musk did not respond to an email seeking comment.)

In the months after the tweet, as conservative lawmakers and activists sought more information on the hospital’s transgender patients, MUSC employees expressed concern that hospital leaders went too far to appease lawmakers, according to emails. The emails show hospital leaders eventually buckling under the pressure and excluding doctors and other key employees from the decision-making process.

By the beginning of December, the hospital’s leaders came to an agreement that MUSC would cut off access to hormones for gender transition for minors of all ages — including 16- and 17-year-olds, which went beyond what the Legislature sought. At the time, MUSC leaders told reporters that they were no longer legally allowed to offer the care, an about-face from their initial pronouncement that the Legislature’s action would not impact regular functions. They also gave no public explanation of how providing the care to older teens could be considered illegal.

In response to ProPublica’s questions, MUSC spokesperson Carter Coyle called cutting off care for older teens an “operational decision made by hospital leadership,” but failed to elaborate. She said MUSC and its providers “took immediate steps” to comply with the state’s ban once it went into effect.

The hundreds of emails released to ProPublica do not indicate exactly why or when MUSC leaders made these decisions. But from last September through this spring, the emails show leaders painstakingly attempting to avoid the appearance of support for transgender people or LGBTQ+ causes on social media, concerned about garnering further political backlash.

In banning state funding, South Carolina lawmakers wielded one of many tools conservative-run states are using to restrict access to gender-affirming care. Over the last several years, Republican elected officials in many states have elevated anti-transgender issues in their political platforms, used misinformation about transgender people when introducing bills to restrict gender-affirming care and spent public money waging extended court battles to limit access to care for trans children and adults.

More than 20 states have passed bills that restrict care for transgender young people. Several of those laws are facing court challenges, including one in Tennessee, where opponents have petitioned the U.S. Supreme Court to take up the case. South Carolina conservatives tried and failed to get a ban passed this year and are expected to try again when the Legislature reconvenes in January. These attempts contradict the recommendations of major medical associations, which support access to gender-affirming care for transgender young people.

Even before states pass outright bans, hospitals and clinics, especially those reliant on state contributions, often bow to political pressure. In Mississippi, for example, the University of Mississippi Medical Center decided to stop providing puberty blockers and hormone therapy to trans youth months before state lawmakers banned care. Mississippi Today obtained emails showing UMMC cut off care after receiving pressure from lawmakers who were angry that the facility was providing any gender-affirming care to youth. UMMC declined to comment either to Mississippi Today or for this story.

In South Carolina, after it became clear last December that MUSC was halting transition-related care for all minors, conservative lawmakers celebrated their victory. “I went after the Medical Center of South Carolina with 19 other of my door-kicking, rock-ribbed, and South Carolina’s most Conservative legislator friends,” Republican state Rep. Thomas Beach wrote in a Facebook post. “It feels good to be a gangster.”

Some transgender youth and their families found out the care was no longer available well after the decision was made. Max, a 17-year-old transgender patient at MUSC, didn’t know until this spring that he’d be cut off from testosterone therapy after more than a year on it, time in which he’d become more confident in his body and gender. “I can’t watch myself go back in time like that,” he recalled thinking. “I was like, ‘I don’t think I’m gonna survive this.’”

In the days after Musk’s tweet, hospital staff and executives were scrambling to minimize the damage and to telegraph to the Legislature that they were not violating the ban.

“It’s been a whirlwind few days, with LOTS of cooks in the kitchen,” MUSC communications director Heather Woolwine wrote on the morning of Sept. 20 to the hospital’s director of LGBTQ+ health services. Woolwine asked him to review “the messaging that has been approved at the leadership level, after much back and forth.”

In her email, Woolwine reported that staff was checking all of the hospital’s online pages for “about 35 key terms to see if there is any other content out there that might place us in anyone’s crosshairs.” (Those terms included “affirming providers,” “questioning” and “queer.”) She acknowledged that the hospital didn’t want to “swing too far in the other direction” in responding to the threat of political retaliation. “We MUST keep respect of our patient, family and employee audiences at the forefront of any decision-making,” she wrote.

But that commitment was already faltering. By the time she sent the email, MUSC had determined that it would no longer provide hormones or puberty blockers to transgender children under 16.

The recipient of Woolwine’s email, MUSC’s first top-level employee focused exclusively on LGBTQ+ health, quickly wrote back. Chase Glenn explained that the hospital’s principal provider of gender-affirming care for transgender youth had told him about the lack of “any direct communication to her patients under 16 and their parents about the current legal reality.” One of her patients had come in the day before, he noted, only to learn that the care was no longer available.

“The patient’s mother was extremely angry and of course that’s out of concern for their child,” Glenn wrote, adding that the doctor herself “is hoping for some proactive, thoughtful, patient-centered communication that would at least make impacted patients/parents aware of the situation.”

Woolwine asked Glenn to help tackle that problem and suggested getting hospital leaders together for a discussion. But the emails over the following several months suggest that plan fell by the wayside. Woolwine didn’t respond to ProPublica’s questions. Glenn declined requests for comment.

Within days, U.S. Rep. Nancy Mace, a South Carolina Republican, posted a video on social media attacking political opponent Annie Andrews, a pediatrician at MUSC who was not connected to the endocrinology clinic. The video scrolled white block letters over a photo of Andrews: “Sex change surgery, puberty blockers, gender changing hormones for children?! That’s not protection. That’s child abuse.” Andrews took unpaid leave from her job and worked with MUSC to coordinate extra security for herself and her kids.

About a week later, MUSC leaders discouraged pediatric residents who wanted to send a letter to all hospital leaders defending Andrews against Mace’s political attacks. “They left me out on a limb,” said Andrews, who has since resigned from the hospital. “What disappointed me so deeply was their refusal to support these vulnerable youth in our community by making a statement that gender-affirming care is not child abuse.”

MUSC told ProPublica it reminded residents that state guidelines prevent public institutions from using state resources to advocate for political candidates. “If MUSC had issued a public statement it could have been interpreted as an endorsement of a candidate running for office,” Coyle said in an email.

In October, conservative politicians and activists started filing public records requests with MUSC to get the data behind Agostini’s abstract. Activists called the pediatric endocrinology clinic pretending to be parents of trans children, attempting to catch providers violating the clinic’s own stated policies regarding gender-affirming care. At least one lawmaker took to social media to threaten MUSC’s $188.9 million in state funds — 3.5% of its budget. “If MUSC is mutilating or castrating children, I won’t stop until they are stripped of public funding,” Beach, a member of the far-right Freedom Caucus, tweeted. Beach did not respond to a request for comment.

In an Oct. 5 email, MUSC leaders shared a news article about Oklahoma’s governor threatening massive budget cuts to the children’s hospital affiliated with the public hospital if it continued to offer gender-affirming care. “Could be the road we end up on,” wrote Mark Scheurer, chief of children’s and women’s care.

MUSC leaders also repeatedly pulled back on messaging related to LGBTQ+ issues, overriding the decisions of their LGBTQ+ health director. Glenn, a transgender man and longtime LGBTQ+ activist, had joined MUSC in 2021 to help the institution become a vanguard of LGBTQ+ health care in the state. By spring of 2022, Glenn had successfully organized the hospital’s first LGBTQ+ Health Equity Summit, bringing providers and students together virtually to learn about challenges in serving queer patients.

But as tension built that fall, Glenn found he had less and less power to do his job.

In November, Woolwine sent Glenn an email discouraging him from promoting a meeting that MUSC students had with the Department of Health and Human Services’ assistant secretary for health, Rachel Levine, the first openly trans person confirmed by the U.S. Senate. Several months prior, the hospital had proudly touted Levine’s appearance at the health equity summit Glenn had organized. Now, officials worried that promoting her involvement would make the hospital a target.

Glenn agreed to stand down. “I’ll note though that the fact that Admiral Levine is transgender is not the emphasis of the post,” he wrote back.

That same month, Woolwine advised a drastic edit to a social media post Glenn had helped draft to commemorate the annual Transgender Day of Remembrance, honoring “the memory of the lives lost due to acts of anti-transgender violence.” Woolwine stressed that lawmakers in the Freedom Caucus would soon be receiving information they had requested from the hospital about the state of gender-affirming care. “I have no doubt that in the week or two that follows, there’s going to be some sort of external messaging from them on transgender issues and their ‘findings,’ probably in social and in news media,” she wrote. “That post for the remembrance day, as written, may then have us looking like we are ‘firing back,’ since lives lost messaging may be interpreted as a shot across the bow.”

The resulting post barely mentioned transgender people at all.

On Dec. 1, an email from Patrick Cawley, the CEO of MUSC Health, landed in the inboxes of three of the hospital’s top leaders: “We need to update the website,” he wrote, referring to the page that described services for pediatric transgender patients. Cawley followed up with another email the next day, giving his preferred edits in red text. To the preexisting sentence that read, “We do not offer surgical treatments,” he added “or gender affirming hormonal interventions.” David Zaas, then the CEO of the Charleston division of MUSC Health, and Scheurer quickly agreed to the change.

Though MUSC Health’s CEO had been ready to make the change public on the website, the decision to cut off the care had not been communicated to Glenn. He asked MUSC leaders about the edit in an email the next day: “Can you confirm for me if this is accurate?” Cawley, Zaas and Scheurer did not respond to ProPublica’s requests for comment.

For some families, the news that their child’s care would be cut off came not from their MUSC provider but from media coverage, including a December Post and Courier article. As the information reached the public in mid-December, Glenn emailed MUSC leaders yet again to push them to communicate with patients. “After the news pieces began airing, I started receiving texts and emails and panicked Facebook messages from concerned parents who wanted to know exactly what this was going to mean for them and their children,” Glenn wrote. “Frankly, I’m frustrated that this communication is indirectly falling on me and embarrassed that we have left many of these patients scared about how they’re going to be able to continue this treatment.”

In response to ProPublica’s questions, MUSC spokesperson Montez Seabrook wrote that the hospital chose to have its providers reach out directly to affected patients during regularly scheduled visits instead of sending out a broader message to trans youth and their families: “This was to ensure that patients and families had an opportunity to discuss any concerns directly with their providers.” He also said, “This personalized approach took a little time to complete.”

In early January, Glenn resigned. “I strongly object to a number of actions recently taken by MUSC leadership that have directly impacted LBGTQ+ individuals’ access to health care services, health care providers’ access to educational resources specific to LGBTQ+ care and my ability to fulfill my responsibilities,” he wrote in a letter explaining his decision.

“[MUSC’s leaders] have created a hostile environment where it will no longer be possible for me, in good conscience, to represent MUSC as a leader in LGBTQ+ care.”

—Chase Glenn, in his letter resigning from his role as LGBTQ+ health services director

He criticized leaders for removing pages of LGBTQ+ resources from MUSC’s website and “unilaterally” postponing the next LGBTQ+ Health Equity Summit just three months before it was going to be held. He also cited leadership’s decision to voluntarily stop providing hormone therapy for 16- and 17-year-olds as one of the reasons for his resignation.

“These decisions and others have created a hostile environment where it will no longer be possible for me, in good conscience, to represent MUSC as a leader in LGBTQ+ care in our state and within the LGBTQ+ community– my own community,” he wrote. “I wish the MUSC all the best in the future and hope that there will come a time when they will meaningfully renew their commitment to being a leader in LGBTQ+ health care.”

When asked about its response to the letter, MUSC told ProPublica it could not comment on a personnel matter.

As the news of Glenn’s resignation spread through the hospital, at least one top employee shared his frustration.

“This is, in my opinion, both terribly sad and entirely predictable,” MUSC pediatrician and Chief Quality Officer Dr. David Bundy emailed other members of the Charleston division’s leadership team. Bundy’s son Eli, who is transgender and attends college out of state, has frequently addressed the Legislature to oppose anti-transgender bills. “MUSC needs to take a long look in the mirror and ask ourselves what our values are.” Bundy declined to comment.

This March, months after MUSC cut off hormone therapy for young transgender people, pediatric endocrinologist Dr. Deborah Bowlby asked Scheurer and the pediatrics chair for guidance on how to communicate the decision to patients. Bowlby was the main doctor who had been treating transgender youth who experienced gender dysphoria, and she repeated concerns she had shared with Glenn the previous fall.

“I have been told that the current policy is that the pediatric endocrinology clinic is not to be providing endocrine care regarding gender transition for pediatric patients. I want to abide by MUSC policies and am not comfortable seeing these patients,” she wrote. “Are you going to arrange to have these patients taken off my schedule and advise them that we are not providing endocrine care regarding gender transition for pediatric patients?”

Scheurer advised Bowlby to refer patients who wanted gender-affirming care to the adolescent medicine providers, who would help coordinate further care. Bowlby was not the only one who was confused. That week, an employee in the psychiatry department emailed colleagues to ask how they were notifying parents and families that they could no longer provide gender-affirming hormone therapy for minors.

At the time MUSC doctors were pleading with leaders for guidance, 17-year-old Max was unaware that MUSC had cut off his care. (Because Max is a minor, ProPublica is protecting his identity by using just his first name and not identifying his parents.) Max, who’d been treated by Bowlby since 2021, had little reason to think anything was amiss when he’d gone in for a follow-up visit in February 2023. His medical notes from that visit reference his preexisting testosterone prescription, as well as his history of gender dysphoria and suicidal ideation. Bowlby did not inform Max or his parents that MUSC had decided to end his hormone therapy.

In late March, Max’s father reached out to Bowlby for a testosterone prescription refill. She didn’t respond. Confused and a little concerned, Max’s dad called the endocrinology clinic’s office and was told by an administrative staff member that his son could no longer get hormone therapy at MUSC.

If you or someone you know needs help, call or text the National Suicide Prevention Lifeline: 988

For Max and his parents, the journey to find the right doctor and medical care was hard-fought. Even when Max was in elementary school, the idea of going through a cisgender girl’s puberty — getting a period and wearing a bra — felt terrifying. At the beginning of high school, Max’s parents took him to a therapist to help with his mental health struggles. The therapist recommended Prozac to address his anxiety and depression. It didn’t work. Max’s anxiety spiked and his gender dysphoria worsened. He began experiencing thoughts of suicide.

In May 2021, he tried to kill himself and was committed to inpatient psychiatric care at MUSC. Once he was released, Max and his parents decided he should see an MUSC pediatric endocrinologist so he could finally start hormone replacement therapy. He immediately trusted Bowlby, who seemed much more knowledgeable about transgender health than some of his previous doctors. Over the course of several months, she guided the family through the process of assessing whether Max was a good candidate for testosterone, patiently explaining the steps she would take to understand his dysphoria.

For Max, getting on testosterone in early 2022 sparked a second puberty at age 16. His voice cracked, he felt hungrier, his skin broke out in acne. “But I felt happier,” Max told ProPublica. “I just mentally felt more relieved, like I’m excited to continue transitioning and things are feeling right.”

Max said he believed that Bowlby would advocate for him. He remembers her referencing the bans on gender-affirming care that were starting to pass in conservative states and reassuring him that she would never stop providing treatment.

When Bowlby abruptly stopped responding to their messages after Max had been on testosterone for more than a year, Max’s dad wrote a second message to Bowlby in the patient portal: “You know how amazingly supportive and grateful we are for your advocacy over the years in these matters, while trans kids (and parents) are under attack. I just wish the office had told us that your office was no longer prescribing testosterone. Now we are a bit behind the 8 ball trying to remedy this.” Bowlby never responded, according to Max’s dad. She declined to be interviewed for this story.

“I’ve been trying to reach everyone and make sure they have a plan for care but it’s been very slow going.”

—Dr. Elizabeth Wallis, of efforts to communicate changes to MUSC’s policies regarding pediatric transgender patients

MUSC staff recommended Max’s parents connect with Dr. Elizabeth Wallis, the adolescent medicine provider who had volunteered to help coordinate care. “I’ve been trying to reach everyone and make sure they have a plan for care but it’s been very slow going,” Wallis wrote to Max’s dad in response to his email. She apologized for the “colossal mess” and promised to help them find a solution. But Max’s dad said that didn’t work out either. (Wallis did not respond to ProPublica’s requests for comment.)

After about a month, Max’s dad found a Facebook group for parents of trans young people in South Carolina, who suggested the family try Planned Parenthood. Max got a renewed prescription soon after.

Now back on testosterone, Max looks forward to turning 18 early next year, which will help ensure he can access gender-affirming care. South Carolina considered a bill earlier this year that would ban medical transitions for anyone younger than 21, but it didn’t go anywhere.

Max and his father still have questions: Why did MUSC cut off Max’s hormone therapy when the state Legislature didn’t even mention 16- and 17-year-olds in its ban? Couldn’t MUSC have prevented the chaos by communicating better with its patients? Why did Bowlby disappear instead of warning them?

“Knowing what happened would be nice,” Max’s dad said. “We figured it out — but we had to figure it out.”

Coyle, the university spokesperson, told ProPublica that MUSC did communicate the change to its doctors. “Physicians are notified of regulatory changes regarding medicine in various ways, including department leadership discussions, discussions with colleagues, information from specialty societies, and mainstream media,” Coyle wrote.

But as recently as May, some MUSC providers were unsure about the policy.

On the afternoon of May 23, after a conversation with her department chairperson, an OB-GYN sent an email to a physician’s assistant in family medicine, an adult endocrinologist and Bowlby. The subject line was “Question about transcare for teens.” She had only just learned that MUSC doctors were “restricted from prescribing transgender affirming care for people under 18yo,” she wrote. “Is this the case? How are y’all navigating that?”

“I have referred to Deb in the past,” the physician’s assistant responded, referring to Bowlby, “but MUSC has made some changes.”