ProPublica

by Mary Hudetz

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The University of California, Berkeley, took a significant step this week toward repatriating nearly half of the 9,000 Native American remains it holds in its anthropology museum, saying they do not belong on its campus and should be returned to Indigenous people.

A notice filed Tuesday in the Federal Register indicates UC Berkeley is committed to repatriating 4,440 ancestral remains and nearly 25,000 items — including jewelry, shells, beads and baskets — that were excavated from burial sites across the San Francisco Bay Area. The notice follows extensive consultations between the university and tribes, including those that claim the Bay Area as their ancestral lands but are not recognized by the federal government, the university said.

One of the tribes, the Muwekma Ohlone, had for decades asked the school to relinquish ancestral remains, according to records reviewed by ProPublica. But Chairwoman Charlene Nijmeh said the tribe’s requests were repeatedly dismissed by UC Berkeley. A turnover in university staff and leadership in recent years has led to a commitment to supporting the Muwekma Ohlone’s repatriation efforts, she said.

“Our people have always been involved in the protection of our ancestors and returning our ancestors from these different institutions,” Nijmeh told ProPublica. “Berkeley was very unique because they always shut the door on our people.”

Repatriating the ancestral remains and items to tribes would mark a significant moment for UC Berkeley, which has lagged far behind other institutions in returning its massive holdings under the federal Native American Graves Protection and Repatriation Act. The 1990 law requires federally funded museums, universities and government agencies to report the human remains and items in their holdings that came from Indigenous burials in the United States so that they can be claimed by tribes and returned to them.

But as ProPublica has reported this year, more than three decades after the law’s passage, scores of institutions have been slow to complete repatriations. U.S. institutions continue to hold an estimated 100,000 ancestral remains, according to data maintained by the National Park Service. UC Berkeley holds the most, having repatriated just 22% of the 11,000 ancestors it initially reported holding.

Many of these institutions say that they do not know where their holdings are from because of poor record-keeping in the past, or that they do not know which tribe they should repatriate to. ProPublica has also found that some institutions used the remains to pursue scientific research, over the objection of Indigenous people.

“Our campus community is motivated to ensure these people are returned to their community and intended resting places,” the university said in a written statement to ProPublica. “We realize that so long as the remains of ancestors, sacred objects, and cultural items remain in the University’s possession, contrary to Tribal wishes, justice will not be served, and the healing we seek will not be complete.”

The release of 4,440 remains and many more items to tribes would mark UC Berkeley’s largest repatriation by far and come as many institutions have signaled changes in their handling of repatriation requests from tribes. It also would follow a wave of pledges from institutions to prioritize repatriation work following ProPublica’s reporting.

UC Berkeley stressed that this week’s notice in the Federal Register is just one step in the lengthy NAGPRA process. Citing federal repatriation law, the notice says tribes — namely those with historical or present-day ties to the Bay Area — have 30 days to file claims for the human remains.

If the repatriation is ultimately completed, the school would no longer have the unwelcome distinction of holding more Native American remains than any other institution in the country, according to the National NAGPRA Program within the National Park Service. Based on federal data from Sept. 30, the Ohio History Connection, a museum and research center in Columbus, would have the most.

Tribes, especially in California, have for decades expressed frustrations with UC Berkeley’s handling of their repatriation requests. In the past, the university stalled or challenged tribal groups’ efforts to make claims to the remains of their ancestors.

In 2018, for example, a UC Berkeley repatriation of 1,400 ancestral remains to the Santa Ynez Band of Chumash Indians, situated near the California coast, resulted in a series of missteps and delays, as ProPublica reported this year. A decade passed between the school publishing in the Federal Register its intent to repatriate the remains to the Santa Ynez Chumash and the tribe finally retrieving them in the summer of 2018.

Then, two years later, the university notified the tribe that the remains of six ancestors that should have been repatriated to them hadn’t been because they were stored in a teaching laboratory. The professor who had oversight of the laboratory said movers may have mistakenly placed the remains there years earlier when the laboratory was relocated from one campus building to another.

UC Berkeley has since pledged to change its ways in response to persistent pressure from California tribes, which led to a 2020 state audit. This spring, a letter from a group of U.S. senators that cited ProPublica’s reporting on repatriation called on the university — and four other U.S. institutions — to explain why they had been slow to complete repatriations in the 33 years since NAGPRA’s passage.

In response, Chancellor Carol Christ told lawmakers in June that the school had reformed policies and practices that had been blamed for stalling repatriations. “We are not proud of the fact that the NAGPRA eligible collection at the museum is one of the largest collections in the country and are working to address this injustice,” Christ’s letter said.

For Nijmeh, the Muwekma Ohlone chairwoman, the fact that UC Berkeley is moving closer toward repatriating the 4,440 ancestral remains and tens of thousands of items from the Bay Area is bittersweet. On the one hand, the school is showing in official documents, like the notice in the Federal Register, that it recognizes the human remains and items it collected from the Bay Area come from the aboriginal lands of the Ohlone people, she said.

On the other, however, the United States does not recognize the tribe, which could result in a repatriation process that is far more complicated than it would be if the tribe had federal recognition, she added. She also said that the Muwekma Ohlone Tribe does not have land as a result of lacking federal recognition. So if the day does eventually come for the tribe to reclaim the ancestral remains, she hopes that UC Berkeley will arrange to set aside land for them.

“We don’t have land to rebury,” she said. “It’s not going to be easy.”

Ash Ngu contributed reporting.

by Margaret Fleming, Monica Sager, Nicole Tan, Susanti Sarkar, Evan Robinson-Johnson and Claire Gardner, Medill Investigative Lab; Photography by Liz Moughon, ProPublica

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They thought they were getting clean air from the lifelines at their bedsides, coveted nights of healthy sleep that for too long did not come easy.

Near Portland, Oregon, Kim Binford’s sleep apnea machine helped him manage chronic pain. Outside Indianapolis, Connie Thompson was able to stay awake in class during her senior year of high school. In the suburbs of Atlanta, Debra Miller could put her grandchildren in the car and drive without fear.

But in June 2021, Binford, Thompson, Miller and millions of others learned that a defect in the breathing machines they relied on for years had the potential to inflict serious harm, including cancer, kidney and lung problems, and severe respiratory infections.

In announcing a massive recall of ventilators and sleep apnea machines, Philips Respironics acknowledged that an industrial foam placed inside the devices to reduce noise could break apart and send tiny particles and fumes into the noses, mouths and lungs of patients.

As many as 15 million devices from two Pittsburgh-area plants were made with the crumbling material, including the company’s popular DreamStation continuous positive airway pressure, or CPAP, machine used by those with sleep apnea. The disorder causes breathing to stop and start through the night.

Since the recall, thousands of consumers have described unexplained illnesses while the reported death count linked to the recalled machines rose to more than 370. Some stopped using their devices altogether. Others bought secondhand machines, waited on a replacement from Philips or simply gambled, continuing to use their defective devices long after the recall.

Losses mounted quickly: lost sleep, lost money, lost nights spent worrying about a health threat that the U.S. government determined could cause severe illness or death.

Though it’s impossible to know what caused individual illnesses, or whether the machines were capable of advancing cancers that may have developed prior to use by patients, some medical experts say they fear long-term harm. The Food and Drug Administration has said the degrading foam, when inhaled or ingested, can lead to headaches, asthma, inflammatory conditions, respiratory tract problems and “toxic or cancer-causing effects to organs,” among other health complications.

Lawsuits against the company are ongoing in federal court in Pittsburgh, waged by families who say Philips should be held accountable for failing to warn customers about the risks years earlier.

In a statement, Philips said that patient health and well-being is a top priority and that the company increased production amid supply chain challenges to send replacement devices to customers. The company added that some received entirely new machines while others received a CPAP motor that would work with existing components.

Since the recall, Philips has walked back its initial assessment that the machines were potentially unsafe, saying new testing on the DreamStation and similar devices has shown that chemicals released by the foam are not at levels that can cause “appreciable harm.”

Medical experts and engineers familiar with the testing dispute that claim. Last month, the FDA announced that the company’s testing was inadequate and said that Philips had agreed to conduct additional assessments.

In the United States and beyond, families are still struggling.

“I worked my whole life to be pretty healthy,” said Miller, a retired elementary school teacher. “I didn’t want any debris in my lungs.”

CHURCH POINT, LA. Sleeping Alone After 32 Years Shawne Thomas’ husband, Rodney, died in hospice, holding her hand. She said the company should have warned them earlier about potential health risks.

In the middle of the night in June 2021, in a bedroom that overlooks landscaping projects that her husband never got to finish, Shawne Thomas scrolled through YouTube videos.

Rodney Thomas, a former Marine, had died a few days earlier from a rare form of nose and throat cancer after punishing rounds of chemotherapy and radiation. He was 51 and had recently retired, with plans to spend more time with their grandchildren.

An online post made Shawne Thomas stop cold: Philips had recalled millions of CPAPs and ventilators, saying the machines could send potentially “toxic and carcinogenic” material into the masks of users.

Thomas rummaged through her bedroom closet and found the machine that her husband had used for about 20 months. It was one of the recalled CPAPs, the widely used Philips DreamStation.

“I was amazed, hurt and angry all in one — and then I was furious,” she said.

Thomas, 53, met her husband in the late 1980s when they were both Marines and stationed in California as radio operators. He proposed on Valentine’s Day, and the couple wed a few months later.

Rodney Thomas

Married for 32 years, they lived on 20 acres in rural Louisiana across from a field of pecan trees. Rodney Thomas took care of the yard, the chores and his wife, who is disabled from a spinal cord injury sustained during military service.

Diagnosed with stage 4 cancer in early 2021, he underwent two surgeries, seven-hour chemotherapy sessions and radiation treatments.

He died in hospice, holding his wife’s hand, one week after the Philips recall was announced. Shawne Thomas threw a celebration to honor her husband’s life and then, like thousands of others, decided to join litigation against the company.

Thomas said that she and so many others should have been warned far earlier about the potential health hazards.

“I start to feel those thoughts and get angry and get into that dark place, and I have to remind myself I had 32 wonderful years with this man, and I am very lucky to have had that,” she said.

More than two years after her husband’s death, she said, she still has trouble sleeping. On cold nights, she lies under a quilt made of his T-shirts, next to a stuffed panda he gave her when he proposed years ago.

LAFAYETTE, LA. “Fearful” Veteran Stopped Using a CPAP Lee worries about his health, but he can’t bring himself to go back on a CPAP.

Jules Lee Jr. isn’t scared of much.

The 56-year-old Army veteran watched tanks explode, dodged bullets and swept through enemy bunkers during the Gulf War in the early 1990s. But when he learned in 2021 that the DreamStation that he had been using for three years to help him breathe at night had been recalled, Lee got scared.

His best friend, Rodney Thomas, who had also used a DreamStation, died from nose and throat cancer only days after the recall was announced. Like Thomas’ wife, Shawne, Lee said he fears the recalled CPAP was to blame.

Lee decided to stop using a breathing machine altogether.

“That really solidified me not using the machine — and not wanting to use any machine,” said Lee, who lives outside Baton Rouge.

He is not alone: Doctors surveyed for a study published in the Journal of Clinical Sleep Medicine said that 1 in 4 patients with sleep apnea stopped using their CPAP machines after the Philips recall. A majority of the doctors also reported that patients had lost trust in medicine.

Lee said he knows a CPAP machine will help control his sleep apnea, which, left untreated, can lead to strokes and heart problems. But he decided that he would rather die in his sleep than risk experiencing what his friend felt during months of cancer treatment.

Struggling with post-traumatic stress disorder, Lee said his depression worsened after Thomas died. On good days, Lee takes deer-hunting trips to Alabama and keeps up with a group of men who served together through basic training in Oklahoma and operations in the Middle East.

He said he worries about his health, his choice and what might come next, but he can’t bring himself to go back on a CPAP.

“I’m fearful and untrusting,” Lee said. “This is too fresh for me to want to start using a new machine.”

HILLSBORO, ORE. Ex-Marathoner Waited Over 2 Years for a Replacement Machine Binford said he used his recalled machine for about two years until he received a new one.

Kim Binford can’t remember the last time he felt like himself.

In the middle of the night, he wakes up in pain, with excruciating spasms near his heart or in his legs, arms and torso. He paces for long stretches and tries to go back to sleep.

Most nights, he just waits for morning.

The retired engineering manager who once ran marathons has sleep apnea as well as a rare condition known as benign cramp-fasciculation syndrome, which triggers severe muscle spasms.

He used a specialized Philips bi-level positive airway pressure, or BiPAP, machine for more than a decade to treat the conditions, but he stopped after learning in 2021 that his device and millions of others were recalled. Binford said he immediately called the company and registered for a new BiPAP.

Then he waited.

For several weeks after the recall, he said he managed to stay off his recalled machine altogether. But he stopped breathing one night and didn’t rouse quickly when his wife tried to jostle him awake at their home in the suburbs of Portland, where they live with two rescued Chihuahuas.

The father of two, who lives on a fixed income and could not afford to pay thousands of dollars for a new machine, started using his old one again.

“I’m kind of damned if I do, damned if I don’t,” he said. “Anything’s better than nothing. I’m just gonna roll the dice with my life.”

In September, more than two years after the recall, Binford said his insurance company finally sent him a refurbished machine.

“My condition was getting worse and worse and worse,” he said.

ATLANTA She Finally Got a New Machine — With Missing Parts After waiting a year for a replacement machine, Miller said she received a CPAP motor without an electrical cord or instructions for use.

One year after Philips recalled millions of breathing machines, retired elementary school teacher Debra Miller decided she was tired of waiting for the company to send a replacement.

So she took matters into her own hands.

In June 2022, she emailed Philips, writing: “I’ve had a difficult year. I would like my machine as soon as possible.”

Three days later, Miller said, a box from Philips arrived at her two-bedroom home in the suburbs of Atlanta. It had a refurbished CPAP machine motor, she said, but no electrical cord or instructions for use.

“The components of the machine came, and they’re just dumped in a box,” said Miller, 70, who taught in public schools for 30 years.

Miller started using a CPAP machine in 2019 after she passed out driving her Ford Escape and crashed into three other cars, puncturing her liver. The other cars were totaled in the wreck; the drivers had minor injuries.

Miller was diagnosed with sleep apnea and daytime narcolepsy. The grandmother of three was not charged in the accident.

She got her first Philips machine soon after the diagnosis and used it every night.

After the recall, as she waited on a replacement from the company, she withdrew $1,000 from her retirement account to buy a new machine from a Philips competitor. Eleven months later, she received the refurbished CPAP from Philips — and stashed it in her bedroom closet.

“I literally got … half of an old machine,” she said.

IBERVILLE PARISH, LA. Local Sheriff Still Thinks About Mysterious Material in His CPAP Brett Stassi, who was diagnosed with kidney cancer, is hoping to complete his fourth term as sheriff.

Sheriff Brett Stassi figured the black particles that turned up in the CPAP machine he used every night for four years were harmless.

That changed in 2021 after the Philips recall, when Stassi learned that an industrial foam embedded inside the devices could crumble and send debris and fumes into his lungs.

“You’re worried about dying in your sleep, and you come to find out that the machine might be doing more damage than the apnea,” he said.

Stassi said he has good reason to worry.

One month before the recall, he was rushed into surgery after a routine visit to the doctor yielded an unexpected diagnosis: kidney cancer. His right kidney was removed, and he was treated with an immunotherapy drug.

Now in remission, the grandfather of five said he’ll never know if those black particles made him sick. But he’s suing Philips, he said, because the company should have alerted its customers to the health risks years before the recall.

In Iberville Parish outside of Baton Rouge, Stassi tries not to dwell on the diagnosis. He keeps busy supervising 148 deputies and a jail filled with inmates.

His doctors have warned Stassi that the cancer could return, possibly in his lungs or brain. For now, the scans are clear, and he’s hoping to finish a fourth term as sheriff. On a spring morning in an office filled with thank-you notes and photos of his children on their wedding days, Stassi flipped through pictures of his infant grandson.

“See why I’m trying to stay alive?” he said.

MARTINSVILLE, IND. At 24, She’s Bracing for a Lifetime of Worry After using a recalled CPAP for four years, Thompson said she’ll always worry about her health.

Connie Thompson spends her days studying public safety, advocating for social and economic justice, and caring for her disabled mother.

At night, the 24-year-old races to the theater. She auditioned at an Indianapolis community theater for the first time last year and was cast in a production of “Little Women.” She has since moved on to the musical “Into the Woods.”

“It’s like, ‘Oh my God, I belong here,’” she said.

Thompson is busy mapping out plans for a future on stage but worries about the years ahead.

Diagnosed with sleep apnea as a teenager, she used a DreamStation for four years before learning about the recall and safety risks. Thompson said she fears that the prolonged use will one day impact her health.

“There’s so much that I want to do,” she said. “All of the opportunities that I’ve earned, I want to take them to their absolute fullest. The idea [that] I might not have a choice in that just shattered my world.”

Thompson first started using her CPAP machine in high school after excessive fatigue often kept her out of school. When her doctor told her in 2021 that her device had been recalled, Thompson said she had no choice but to continue to use her old one even though she often found black particles in her mask.

Unable to afford a new machine, she waited a year for Philips to send a replacement, cutting up surgical masks and wedging them into the tube that connects to her face mask to try to filter the debris. Lost sleep, she said, wasn’t an option. Her mother has rheumatoid arthritis and needs support around the house.

Thompson also takes classes at Ivy Tech Community College and has long considered herself a political activist, with views shaped in part by her experiences as a transgender woman.

She was recently cast in her first paid acting role and is preparing to audition for four-year conservatory programs to study musical theater. But she said insecurity about her health lingers.

“To know that I could get cancer or some other health effect from using a defective machine for so long brings me right back to square zero — the powerlessness of being completely incapacitated by health problems not under my control,” she said.

BATON ROUGE, LA. For Former Federal Marshal, Every Breath Is a Struggle Carey Jenkins continues to serve as a constable despite a lung cancer diagnosis.

Just months before he was diagnosed with lung cancer, Carey Jenkins walked 60 miles over eight days in the mountains of Alaska on a bear-hunting trip.

Jenkins had always followed a strict exercise regimen. He had served as a deputy federal marshal for 16 years and was later appointed by former President George W. Bush as head marshal for the Middle District of Louisiana. Fitness was required for promotions: running a timed mile and a half, completing situps and pushups, and maintaining a low body fat ratio.

Jenkins went on to serve as an elected constable in his East Baton Rouge parish.

Everything changed, however, when his doctors found a spot on his lower right lung in the fall of 2019. Two years later, it had grown bigger.

The day he went to schedule surgery in 2021, he said he found a notice at the Louisiana home where he and his wife have lived for 30 years. It detailed the sweeping recall of breathing machines, including the DreamStation, which Jenkins used for several years to treat sleep apnea.

Like so many others, the 68-year-old grandfather of four said he worries the machine that helped him breathe at night instead imperiled his health.

With a malignant tumor on his lung removed, Jenkins is still working as a constable. But he said that even walking down his driveway to the mailbox is difficult, and he can no longer help his wife carry the furniture and crystal that she sells through her antique company. He sometimes takes supplemental oxygen with him to catch his breath.

“Before I do something, I know that there’s a limit that I have to stop at,” he said. “I’m just doing everything I can do to get a deep breath. … You have to work on it.”

In recent months, he’s been able to return to the gym with a trainer. Now, instead of exercising for his job in law enforcement, he’s keeping fit to try to live longer.

His goal: a hunting trip with his son next year.

ST. LOUIS A Father of Four Is Laid to Rest Terry Flynn, a father of four, died in 2021. From left: his daughter Colleen Flynn, widow Mary Ann Flynn and son Sean Flynn.

In a church in St. Louis, hundreds of people gathered to honor Terry Flynn with a song: “When Irish Eyes Are Smiling.”

The father of four died in 2021, two weeks after he was diagnosed with esophageal cancer. He was 63 and had never made it to Ireland. A family friend planted a tree there in his memory.

“Before I even got engaged to Terry, one of the first things we did was attend a St. Patrick’s parade,” said Mary Ann Flynn, his wife of 35 years.

Terry Flynn used a recalled Philips machine for nine years to treat sleep apnea. His wife and children say they’ll never know if the device caused his illness, but they blame the company for not alerting patients to the potential health risks sooner.

Mary Ann Flynn said her husband, who went to the gym every morning before work at a law firm, would have immediately stopped using the machine.

“Had someone come to us … we would have been like, ‘Toss it out the window,’” she said. “It would have changed the scope of so many things.”

Terry Flynn was born and raised in St. Louis, where he coached soccer and baseball and liked to go fishing in local lakes. He met his wife in college, and they married shortly after graduation.

In 2021, the couple were planning a family vacation to Florida to celebrate the birthday of their twins, who were turning 21, and their older son, Sean, who had just been certified as a public accountant.

The trip never happened. Flynn was diagnosed with cancer that had spread from his esophagus to his liver and kidneys and died days later. Mary Ann Flynn said she and her family decided to sue Philips for failing to alert customers about the defective devices.

“It’s a machine to help you breathe by a reputable company,” she said, adding, “You kind of just trust.”

TORONTO Around the World, Outrage Over Philips Recall A family photo of Pedram Ghaitani with his wife, Ganna Kron

Pedram “Pedy” Ghaitani needed his sleep.

On most days, the driver for a medical company left his wife and young son in their apartment before sunrise to shuttle patients to appointments across the city. Ghaitani drove a limousine in his spare time, racing to airports, weddings and business meetings.

When he was diagnosed with sleep apnea in 2016, he became a faithful user of the DreamStation. He continued to use the machine even after doctors discovered in 2019 that he had a rare form of lymphoma. The 51-year-old Iranian immigrant died later that year.

“I always thought whenever he used to come home late, sometimes 2, 3 o’clock in the morning, ‘Thank God,’” said his wife, Ganna Kron. “He always came home. And then he didn’t.”

Kron is among thousands of people involved in litigation against the company in Canada. Anger has swept the world, with lawsuits similar to those in the United States unfolding in several countries.

Kron said she’ll never know exactly what caused her husband’s illness but fears his recalled CPAP played a critical role. “Carcinogenic particles — it just baffles my mind,” she said.

Ghaitani fled Iran as a teenager and settled in New York. After he met Kron, he moved to Toronto. The couple married and had a son, Nash.

“He missed the chance to grow up with such a great man,” Kron said. “That is my heartbreak.”

Kron and her son, Nash

Reporting was contributed by Debbie Cenziper of ProPublica; Michael D. Sallah and Michael Korsh of the Pittsburgh Post-Gazette; and Molly Burke, Aidan Johnstone and Bridgette Adu-Wadier of the Medill Investigative Lab.

by Anna Clark

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

In the end, it took 699 days to account for what went wrong before, during and after a deadly shooting at Oxford High School in Michigan.

Nearly two years after the shooting, which killed four students and injured seven others, an outside consulting firm that conducted an independent investigation issued a sweeping report that faulted top administrators and other school officials for “failure and responsibility by omission.”

The 572-page report from Guidepost Solutions, a New York-based firm that specializes in investigations, compliance and security, said that had threat assessment and suicide intervention been carried out appropriately, the November 2021 shooting could have been prevented.

Guidepost also found missed opportunities in the aftermath of the shooting. The report describes efforts by the lawyers for Oxford Community Schools and the teachers union to discourage people from cooperating in the investigation, showing why it can be so difficult for communities to find transparency and accountability following a mass shooting.

Some school leaders encouraged staff to participate in interviews with the consultant, the report said, but the school board made it voluntary, rather than a condition of employment. The board didn’t even say it “expected” district employees to participate.

This “hindered our ability to conduct the investigation effectively,” the report said.

Of the 161 people Guidepost investigators asked to interview, 70 refused or did not respond, including most of the shooter’s former teachers and several critical witnesses to the shooting. Both employees who met with the shooter hours before the incident did not cooperate. Of those who were interviewed, some would not speak about threat assessment practices preceding the violence.

For the report, investigators also turned to police reports, surveillance video, social media posts, deposition transcripts and other records, including files from the county prosecutor’s ongoing criminal investigations.

In May, a ProPublica story described how comprehensive third-party reviews of school shootings are very rare — typically happening only after the highest-profile tragedies. Even then, haphazard approaches can breed mistrust and waste the chance to learn lessons on prevention.

Oxford Community Schools declined multiple offers from Michigan’s attorney general to investigate, the story said. For six months, Oxford’s board followed guidance from a lawyer retained by the school’s insurance company, SET SEG, as it insisted that it couldn’t launch a review until criminal and civil cases were resolved. But there was no such prohibition from prosecutors.

ProPublica’s story described how the delay in approving an independent review contributed to an atmosphere of mistrust among parents and community members.

The morning after the report’s release, Renee Upham, an Oxford mom who used to teach at the district’s middle school, wrote an email to school officials that she shared with ProPublica, calling on them to apologize to students, staff members and families. It also asked when key figures will be put on leave or terminated.

“The report is damning,” Upham wrote. “At its core, it shows failures going back years that could have prevented the murder of four children and the injuries, both physical and emotional, of others.”

After allowing “two years to pass before the truth came out,” she wrote, the district now has a chance to own it. “Please do so, she wrote. “That is what authentic leadership is.”

The report released Monday was the second from Guidepost. In May, the firm released a 179-page report that assessed Oxford’s current security, suicide intervention and threat assessment strategy. But the accountability report released Monday is the one many community members wanted most.

On Thursday, Guidepost will host three town hall meetings to answer questions from the community about the report.

“I cannot believe it has taken almost two years to get to this point,” wrote Danielle Krozek, an Oxford mom, in an email to two Guidepost leaders this month that she shared with ProPublica. She thanked them for their time and effort, but also said she felt “on edge and skeptical.”

“This community and administration have missed the opportunity to acknowledge devastating failures and set the example for our state and nation,” she wrote.

In an interview with ProPublica earlier this year, Dan D’Alessandro, then-president of the school board, acknowledged the community’s anxiety and mistrust over the long wait. “Sometimes the messaging that comes out from the legal system and the legal teams isn’t necessarily reflective of that of what the school district is trying to do,” he said.

During the Nov. 30, 2021, rampage, an Oxford sophomore killed Tate Myre, 16; Hana St. Juliana, 14; Madisyn Baldwin, 17; and Justin Shilling, 17. The shooter pleaded guilty to charges including murder and terrorism and faces the possibility of a life sentence without parole.

In an unprecedented case, prosecutors also charged the shooter’s parents with involuntary manslaughter, alleging they failed to respond to multiple red flags about their son. Four days before the shooting, his father bought a gun for him. The parents have pleaded not guilty.

At school, there were also a number of warning signs, including a disturbing drawing that pictured a gun and a bleeding body made in math class the morning of the shooting. It prompted a meeting with a school counselor, the dean of students, the teenager and his parents. Nobody in the family mentioned the gun, according to court records, and school officials didn’t ask about access to weapons.

Officials also didn’t insist the student leave school, alert senior administrators or call outside authorities, and they didn’t check the student’s backpack before returning it to him and writing him a pass back to class. The gun was in the backpack, along with ammunition and a journal where every page described shooting the school. Less than two hours after the meeting, he began firing at teachers and classmates.

“Missteps at each level throughout the District — from the Board, to the Superintendent, to the OHS administration, to staff — snowballed to create a situation where a student’s communications and conduct should have triggered a threat assessment and suicide intervention on November 30, but did not,” the report said. “None of these mistakes were intentional. But costly mistakes they were.”

The Oxford school district failed to put its written threat assessment policy into practice with instructions and guidelines, according to the Guidepost report. No senior administrators acknowledged having responsibility for implementing the policy.

Moreover, the district’s suicide intervention guidelines were out of date. Even so, existing school protocols should have led educators to send the troubled boy home, rather than let him return to class, according to the report.

The report also described “extraordinary acts of bravery and kindness” by district personnel, including administrators who tried desperately to save student lives during the shooting.

In the aftermath of the shooting, parents filed civil suits, alleging gross negligence against several school employees and arguing the district was liable for what happened. But strong governmental immunity protections are difficult to surmount. In May, a state circuit court judge dismissed public employees and institutions from all suits.

Federal suits alleging a “state-created danger” and naming the district and the two officials at the meeting with the teenager on the morning of the shooting are still being litigated.

In an earlier motion to dismiss, a lawyer, on behalf of the district, wrote that no one “can claim with a scintilla of support that the employees were not attempting to help this student.” The motion also argued: “With the benefit of hindsight, it is easy to suggest that more could have been done. However, that is not the legal standard.”

Shortly after the shooting, the Oxford school board voted for a third-party review to begin “immediately.” According to the board’s resolution, it should “look far beyond the criminal investigation and into all the systemic factors that were at play.”

When a review didn’t happen, community members challenged the explanation from the school board that such an investigation had to wait for legal reasons. Those parents eventually learned directly from the county prosecutor’s office that, in fact, an investigation would not interfere with criminal cases. The prosecutor’s office further indicated that it had made this clear to the school’s lawyers, and at least one parent forwarded the message directly to the school board.

Finally, in May 2022, Oxford hired Guidepost for the investigation. It was led by Bradley Dizik, an executive vice president who heads the company’s emerging issues and technology practice group, and Andrew O’Connell, president of investigations and private client protection.

But even then, Timothy Mullins, the lawyer retained for the school by the insurance company, and union officials cautioned against talking. The union has pointed out that some members did cooperate with the investigation.

Mullins, in an email to ProPublica earlier this year, said that “critical witnesses have all been interviewed by law enforcement officials. They have also been deposed — under oath — by victims’ attorneys. Their sworn testimony has been set forth in voluminous transcripts, which are available to all parties and were provided to Guidepost by my firm.”

Deposition transcripts were useful but insufficient for the investigation, according to the report. Investigators noted that lawyers had different goals than they did and asked different questions than they would. (The report said that anyone interviewed by Guidepost was welcome to have an attorney present.)

Former board members told ProPublica that they worried that if they didn’t heed the advice of the lawyer retained by SET SEG, the school’s insurer could rescind coverage. Given the concerns of the district and certain employees, the report suggested legislation that explicitly prevents insurers from denying coverage to public schools and their employees if they participate in independent investigations into school shootings.

Anticipating the report, Oxford’s superintendent and the current board president informed families this month that the district would increase mental health support on campuses following its release and noted that the publicly funded All for Oxford Resiliency Center, established for those affected by the shooting, would expand its hours. They also pointed families to Oxford’s recovery plan and support services from county partners.

by Tony Schick, Oregon Public Broadcasting

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

To free salmon stuck behind dams in Oregon’s Willamette River Valley, here’s what the U.S. Army Corps of Engineers has in mind:

Build a floating vacuum the size of a football field with enough pumps to suck up a small river. Capture tiny young salmon in the vacuum’s mouth and flush them into massive storage tanks. Then load the fish onto trucks, drive them downstream and dump them back into the water. An enormous fish collector like this costs up to $450 million, and nothing of its scale has ever been tested.

The fish collectors are the biggest element of the Army Corps’ $1.9 billion plan to keep the salmon from going extinct.

The Corps says its devices will work. A cheaper alternative — halting dam operations so fish can pass — would create widespread harm to hydroelectric customers, boaters and farmers, the agency contends.

“Bottom line, we think what we have proposed will support sustainable, healthy fish populations over time,” Liza Wells, the deputy engineer for the Corps’ Portland district, said in a statement.

A rendering of the Corps of Engineers’ proposed floating fish collector as envisioned by a design firm hired by the agency. (U.S. Army Corps of Engineers)

But reporting by Oregon Public Broadcasting and ProPublica casts doubt on the Corps’ assertions.

First, some leading scientists have said the project won’t save as many salmon as the agency claims.

A comprehensive scientific review in 2017 concluded that the use of elaborate fish traps and tanker trucks to haul salmon, as the Corps proposes, will “only prolong their decline to extinction.”

Moreover, many of the interests the Corps says it’s protecting maintain they don’t need the help — not power companies, not farmers and not businesses reliant on recreational boating.

The Corps’ effort to keep its dams running full-bore is a story of how the taxpayer-funded federal agency, despite decades of criticism, continues to double down on costly feats of engineering to reverse environmental catastrophes its own engineers created.

The 276-foot Lookout Point Dam on the Middle Fork of the Willamette River poses a major obstacle for tiny juvenile salmon as they attempt to migrate downstream (U.S. Army Corps of Engineers)

The only peer-reviewed cost-benefit analysis of the Willamette dams, published in 2021, found that the collective environmental harms, upkeep costs and risks of collapse at the dams outweigh the economic benefits.

Congress has weighed in, twice calling on the Corps to study shutting down hydropower, which would free up more water for salmon. The agency blew its first deadline last year and now says it will perform an “initial assessment” to help decide whether to do the study required by law.

Emails obtained by ProPublica and OPB show that as Corps officials hashed out how to handle the mandate from Congress, they proposed actions that could increase public support for preserving hydropower. The Corps is now finalizing a plan that would continue electricity generation for the next 30 years.

“How can you finalize a long-term plan if you don’t know whether or not you’re going to continue hydro?” said former U.S. Rep. Peter DeFazio, D-Ore., who pushed for legislation ordering the Corps to study ending hydropower.

“They’re doing that without the study and the information they need,” he added.

Democrat Val Hoyle and Republican Lori Chavez-DeRemer, who now represent portions of DeFazio’s former district, said in separate written statements that it was urgent for the Corps to finish its study and no decisions on the Willamette should be made until that happens.

There is a simpler way to protect fish: opening dam gates and letting salmon ride the current as they would a wild river. It costs next to nothing, would keep the Willamette Valley dams available for their original purpose of flood control and has succeeded on the river system before. This approach is supported by Native American tribes and other critics.

The Corps ruled it out as a long-term solution for most of its 13 Willamette River dams, saying further reservoir drawdowns would conflict with other interests.

The debate and the consequences of the decision are real for the Confederated Tribes of the Grand Ronde, who have fished the Willamette for thousands of years. Grand Ronde leaders said they’ve met with the Corps seven times to spell out potential alternatives to building giant fish collectors and maintaining hydropower.

“They always feel like they can just build themselves out of problems. And this is really something that we don’t need to build,” said Michael Langley, a former tribal council member for the Grand Ronde.

First image: Grand Ronde tribal member Michael Langley stands in front of the tribe’s plankhouse, used for cultural ceremonies, weddings and funerals. Second image: Langley has an outline of a 53-pound Chinook salmon his father, Leonard Langley, caught in 1975. In Michael Langley’s former role as a tribal council member, he said he met with the U.S. Army Corps of Engineers about taking more measures to restore healthy salmon populations, because “the way we’re doing it right now, it’s more likely to lead to extinction.” (Kristyna Wentz-Graff/Oregon Public Broadcasting)

The tribes have also said generating electricity at the dams doesn’t pencil out for anyone. By the Corps’ own estimates, the cost of hydropower over the next 30 years will outstrip revenues from electricity customers by more than $700 million.

The tribes filed a letter with the Corps in February that included a pointed summation: “Killing salmon to lose money deserves a deeper analysis.”

Confederated Tribes of the Grand Ronde tribal members Sara Thompson, left, and Matt Zimbrick, center, along with the tribe’s fish and wildlife program director Kelly Dirksen, navigate the rocks at Willamette Falls, a waterfall just south of Portland that has long been an important fishing site for the region’s tribes. In recent years, salmon counts at Willamette Falls have reached historic lows. (Kristyna Wentz-Graff/Oregon Public Broadcasting) “Tooth and Nail”

Many of Oregon’s most populous and valuable places, like downtown Portland, would spend parts of the year underwater if not for dams.

Housed at the bottom of Lookout Dam, these three generator turbines contribute 143 megawatts of energy to Oregon communities when fully operational. (Caden Perry/Oregon Public Broadcasting)

Congress ordered the Army Corps to build the system during the 1940s, ’50s and ’60s to hold back floodwaters in Oregon’s fertile Willamette Valley. Towns sprouted up in the security of 300-foot walls. Lawmakers approved additional uses for the dams. The rivers they impounded provided places for people to drive power boats as well as deep pools of water to spin hydroelectric turbines. Today, eight of the 13 dams generate power.

But the monumental structures caused harm, too. Salmon evolved to swim and spawn in cold, free-flowing rivers that the dams choked into warm, stagnant lakes, full of bass and other invasive predators. Salmon need to get to the ocean and back, but the dam walls blocked their path. Whirring turbines bashed fish that attempted to scoot past.

In 2021, after salmon numbers on the Willamette reached historic lows, a federal judge said the fish’s recovery had been stymied far too long.

U.S. District Judge Marco A. Hernandez admonished the Corps for having “fought tooth and nail” against better measures for fish ever since it was first sued over the issue in 2000, foot-dragging that the judge said had pushed the fish closer to the edge of extinction.

Lookout Point Dam blocks nearly 100% of historic spawning habitat for salmon on the Middle Fork Willamette River, which once had one of the most abundant salmon populations in the Willamette Valley. The Corps is currently drawing down the Lookout Point reservoir to aid salmon migration but proposes replacing that measure with a giant floating structure to collect fish. (Caden Perry/Oregon Public Broadcasting)

Gates in the dam walls can provide a passage for young salmon to pass downstream, but they’re usually too deep underwater for the little fish to find because they stay near the surface. Those that do dive down to the deep gates can get the bends and die. The judge ordered the Corps to drain several reservoirs to levels lower than any since the dams were built.

Scientists had observed that whenever reservoir levels dipped seasonally, more fish passed through dams. Knowing this, Corps biologists had been experimenting with draining a reservoir known as Fall Creek until it nearly replicated the original river channel.

The drawdown worked. It moved salmon quickly and safely past the dam and eliminated many of the invasive predators dwelling in the reservoir. At virtually no cost, the Corps increased the number of adult fish that returned tenfold, surpassing what biologists thought possible.

A fish ladder at Fall Creek Dam offers adult salmon a swimming route. At many dams, fish ladders offer salmon a way up and over dams blocking their path. At the tall dams on the Willamette, these ladders lead to pens that hold fish until they can be transported by truck. (Kristyna Wentz-Graff/Oregon Public Broadcasting)

The Corps has argued that there are limits to this approach. Fall Creek’s openings are more fish-friendly than those at other dams. And Corps officials worried draining many dams all at once might trade one hazard for another, such as by leaving too little streamflow for fish.

But Hernandez ruled that the weight of the evidence showed drawing down reservoirs was “the most effective means for providing safe fish passage” and “necessary to avoid irreparable harm” to salmon. He ordered the Corps to try partial drawdowns at three other dams. Then he set a 2024 deadline for the Corps to have a new long-term plan to save salmon, which he expected to go even further than his order.

Tribes and environmentalists cheered the judge’s ruling as a long-overdue remedy.

But the Corps had its own ideas.

Building a Better Fish Trap

In 2022, the Corps released a draft of the document the judge had ordered: a 5,782-page environmental impact statement for Willamette dam operations.

At the two dams that threaten salmon the most, the Corps would build complex structures called floating fish collectors.

Versions built elsewhere resemble industrial buildings atop the water, loaded with fish pens, electrical equipment and water pumps. The idea is for fish to mistake the whooshing current created by the pumps for the river’s flow and get lured into the trap.

Collectors that Corps envisions for Detroit and Lookout Point dams would cost a combined $622 million. In addition, the Corps would spend $432 million on an enormous water-cooling device at Detroit. Other money would buy smaller fish traps and habitat restoration.

Hydropower Dams Block Salmon Migration in the Willamette River Valley

At two of the most crucial dams for salmon restoration in the Willamette Valley, the Army Corps of Engineers has proposed building massive fish collectors that suck in and trap young salmon, which would then be placed in trucks and driven downstream.

(Lucas Waldron/ProPublica)

The Corps first tried a kind of floating fish collector on the Willamette in the 1950s but declared it a failure.

As salmon populations dwindled into the 21st century, the Corps decided to try again, building a small collector on an offshoot of the Willamette. To track the baby fish they were trying to entice, biologists implanted nearly 1,500 with microchips and released them behind Cougar Dam.

Eight found their way into the collector.

The agency ended the experiment ahead of schedule.

Floating collectors at other dams in the Northwest have shown better results. But at the location biologists consider most comparable to the Corps’ Willamette dams, it’s been a struggle. The fish collector on southwest Washington’s Lewis River captured just 3% of the Chinook salmon it was targeting, a peer-reviewed study found. The dam’s owner reported success rates as high as 33% in later years.

“You don’t have to be a rocket scientist to go back and look at how these structures performed in other locations to see that there’s been some challenges,” said Greg Taylor, the Corps’ supervisory fish biologist.

For this reason, the Corps did propose deep and sustained drawdowns at Cougar and Fall Creek dams.

But the number of fish helped would be relatively small because of these dams’ locations. By contrast, the dams where the Corps wants to try fish collectors wall off about 70% to 100% of the area where fish hatch. The Detroit and Lookout Point dams block rivers that once supported some of the valley’s most abundant fish runs.

The Corps didn’t consider these dams good candidates for a drawdown because of the way they were built and because Corps officials viewed their operations as too crucial to justify it.

So agency leaders commissioned a study of previous fish collector builds to devise improvements. They arrived at a plan for collectors five times as wide and five times as powerful as any ever evaluated. The structures at Detroit and Lookout Point would take a decade to complete.

The National Oceanic and Atmospheric Administration, which must approve the Corps’ actions before it can proceed, said in a statement its scientists “are confident that collectors can be effectively applied” as the Corps optimizes their design.

Big uncertainties remain, though.

Supersizing the collectors for better performance makes sense in theory, according to U.S. Geological Survey biologist Tobias Kock, who led the 2019 study. But because what the Corps is proposing is so much bigger than anything Kock and his colleagues looked at, he told OPB and ProPublica, “we don’t know how well that performance prediction’s going to work.”

The most successful floating collector in Kock’s study captured roughly 60% of Chinook salmon, on a reservoir with far more favorable conditions than on those the Corps owns. The Corps, meanwhile, estimates its supersized fish collectors will capture between 80% and 95%.

The Corps’ environmental impact statement acknowledges its numbers are a guess. It says the collectors the agency contemplates “have yet to be successfully implemented and there is considerable risk and uncertainty about the realized effectiveness of these structures.” In a September statement to ProPublica and OPB, Corps officials went further, calling their projected success rates “overestimates.”

University of California, Davis researchers Robert Lusardi and Peter Moyle published a 2017 study in the journal Fisheries warning that the kind of trap-and-haul programs the Corps has proposed “should proceed with extreme caution.”

Lusardi said in an interview that their success rates are artificially inflated and that removing young salmon from the river stresses them, increasing their risk of dying before they find their way home to spawn as adults.

“Transportation of fish, whether it’s juveniles or adults, has a really seismic effect on the fish themselves,” Lusardi said.

First image: Corps biologists Greg Taylor, left, and Chad Helms move a pair of salmon from a collection area at the base of Cougar Dam. The structure traps adult fish that are migrating upriver and holds them in pens until they can be transported past the dam. Second image: Two male salmon are drained from a holding tank into a tanker truck below. (Kristyna Wentz-Graff/Oregon Public Broadcasting) A tanker truck hauls the salmon upriver past dams on the Willamette River system. The Corps has been trucking adult fish upriver past dams for many years. It now proposes hauling juvenile fish downstream as well. (Kristyna Wentz-Graff/Oregon Public Broadcasting)

Rich Domingue, a former NOAA hydrologist who provided expert testimony for environmental groups that sued the Corps, said these flaws and others biased the Corps’ analysis in favor of preserving hydropower.

Instead, Domingue said, the Corps should be drawing down more reservoirs and closely monitoring the results, “rather than spending billions over decades in a high-risk gamble.”

“Human Error Fixing Human Error”

At the heart of the Corps’ push to find a technological fix for dams is its claim that people throughout the Willamette Valley cannot live without the hydropower, recreational boating and irrigation that the dams make possible. The trouble is, it’s hard to find people in the Willamette Valley who feel the same way.

Even the hydropower industry opposes the Corps’ plan to continue with hydropower.

Ending power generation on the Willamette would be “the best for consumers, the best for fish, and the best for taxpayers,” wrote Scott Simms, executive director of the Public Power Council, and Mark Sherwood, head of the Native Fish Society, in a joint 2021 letter published in the Eugene Register-Guard.

Records newly obtained by OPB and ProPublica via the Freedom of Information Act show the federal government’s hydropower agency for the region, the Bonneville Power Administration, also wants the Corps to do away with hydropower on the Willamette.

Bonneville, which pays roughly half the costs of operating Willamette dams, urged the Corps last year not to spend hundreds of millions of dollars to keep turbines running when cheaper solutions exist. The streams feeding the Willamette are wildly inefficient at producing electricity compared with dams on larger rivers, costing up to five times as much to light a home.

Similarly, farmers in the lush Willamette Valley are far less dependent on water stored in reservoirs than their counterparts in the high desert of eastern Washington, Oregon and Idaho, where current farming practices would be impossible without the irrigation that dams and reservoirs supply. The valley gets drenched with 50 inches of rain a year. Draining reservoirs each fall would have a marginal impact on water supplies downstream, according to the Corps’ own analysis.

The Oregon Water Resources Department said the drawdowns already happening under the court injunction have not undermined anyone’s ability to irrigate with water from the Willamette and its tributaries.

“It has no negative impact on me,” said Bob Schutte, owner of Northern Lights Christmas Tree Farm just downstream of two reservoirs that are already being drained each fall.

Lagea Mull runs the chamber of commerce for Sweet Home, a town that sits on a major route to Foster and Green Peter reservoirs. Mull said residents there want salmon to thrive and have adapted to the temporary drawdowns the judge ordered in 2021.

“When the dams came in, that was a massive change to the area,” said Mull, who knows people whose homes are now at the bottom of the reservoirs. “So now this is just another change.”

Linn County Commissioner Will Tucker is among the most vocal with concerns about draining reservoirs. But as a lifelong Willamette Valley resident, he also cares about the salmon.

“If it recovers the salmon,” he said of drawdowns, “it's the right thing to do.”

Tucker wants the Corps to help offset what he worries would be the biggest impact, to the river’s recreation economy. More than 2.5 million people take their power boats or kayaks or inner tubes out on the Willamette River system annually. Visitors inject enough money into marinas, restaurants and shops to keep some towns afloat all year.

But the Corps estimates the kind of limited drawdowns it studied and ruled out would leave boat launches high and dry only at the tail end of the boating season, reducing visits by about 7% and spending by $1.3 million.

One business owner, Dawn O’Donnell, has already adapted her boat rental shop to the shorter season brought by court-ordered drawdowns. She delivers kayak and paddle boards to lakes that haven’t been affected.

Still, she is skeptical that anything the Corps does can actually help salmon to recover.

“It’s kind of like human error fixing human error, after human error, after human error,” O’Donnell said. “How can we make it right now that we’ve ruined it?”

Cougar Dam, on the north fork of Oregon’s McKenzie River, is one of two dams where the Army Corps has proposed draining the reservoir behind the dam down to the original river bed to aid salmon passage. (Kristyna Wentz-Graff/Oregon Public Broadcasting) A View of the River

For the past two years, the Corps has been developing a response to the court order, in which Hernandez stated it was “abundantly clear” the agency needed to change its operation of Willamette Valley dams.

Yet top Corps officials openly acknowledge that they never intended to veer very far from the status quo. Preserving dam uses like hydropower generation and water storage was the goal of its court-ordered environmental impact statement.

Wells, the deputy district engineer for the Corps in Portland, said in an interview that the work that went into the document “isn’t really a planning process for us to change the way we operate.”

As long as the law authorizes uses like hydropower and boating, the Corps has to find ways to preserve them, she said, adding that future needs for the water storage that reservoirs offer will only grow as the climate warms.

“The people that work here are really trying hard to think of what the best ways are to tackle this really tough problem in the space we have,” Wells said.

One internal email obtained by OPB and ProPublica under the Freedom of Information Act reveals how the Corps hoped to build support for staying the course.

Kelly Janes, a Corps planner assigned to the congressional request for a study into ending hydropower, suggested to colleagues that the Corps produce a series of videos and perhaps a podcast showing that hydropower has many benefits. These might generate public comments in support for hydropower that the Corps could forward to Congress.

“The public and Congress are only hearing one side of the story from the Public Power agencies who think hydropower in the Willamette is no longer profitable and Environmental groups who believe that hydropower deauthorization could be a silver bullet for the endangered species issues at our dams,” Janes wrote colleagues in April.

Asked to explain the Janes email, Corps officials denied they were trying to shape public opinion about hydropower. They said they wanted to make sure the public understood the complexities of hydropower and how integrated it is into their dams.

As for why the Corps is locking in a 30-year plan that preserves hydropower before studying an end to it as Congress ordered, the agency cited a looming deadline from Hernandez, the federal judge, and said the Corps has done the best it could in the time allotted.

Former employees and scientists who’ve worked closely with the Corps say its officials are afraid to change because drawing down reservoirs and eliminating hydropower would call into question the agency’s usefulness in the Willamette Valley.

“They don’t like to be seen as an agency that can’t execute,” said Judith Marshall, who spent six years as an environmental compliance manager for the Corps.

Marshall, whose work included projects in the Willamette Valley, filed a complaint with the federal Office of Special Counsel in 2017 alleging the Corps ignored obligations under federal environmental laws.

“They’re some of the smartest people I’ve ever encountered,” Marshall said, but “they’re so wound up in their models and what they’re doing, like they can’t see the forest through the trees.”

From her office in downtown Portland — with a sweeping view of the Willamette and the mountains beyond it — Wells mused on the possibility the Corps might someday take a broader look at what the region really needs from its dams and whether it should allow the river to run more naturally.

“Maybe that’s where this is all going in the future,” Wells said.

For now, the Corps has a $1.9 billion fish plan to finish.

by Ken Armstrong

ProPublica is a nonprofit newsroom that investigates abuses of power. This story was originally published in Dispatches, a weekly newsletter that spotlights wrongdoing around the country and journalism from our newsroom.

Having come to journalism after dropping out of law school (where I discovered I didn’t want to be a lawyer) and dropping out of the Peace Corps (where I discovered I can’t grow vegetables in the Sahara), I started small, working at newspapers with names you probably would not recognize.

My first job was at the Valley Courier in Alamosa, Colorado, where my beat was sports and courts. I’d drop into a trial in the afternoon, perhaps a stabbing, then cover high school basketball games at night. My second job was at the Times-News in Twin Falls, Idaho. It was there, on the night cops beat, that I had a police department source who would call the newsroom and leave, anonymously, a message saying, “The little birdy has flown,” which was his signal for me to call him. From there I went to the Times-Advocate in Escondido, California.

I came to appreciate, and love, local news. I learned how much people care about school bonds and that you spell their street name right. I learned, from interviewing 13-year-old Jimmy Dodds at the Twin Falls County Fair, about the joys of riding the Gravitron. (“If you throw up, it flies back in your face,” he told me.) And I learned that our work can live on long after we leave — that a story’s impact can endure for years.

I was reminded of that earlier this month, because of a court hearing in northern Indiana.

When I began working at ProPublica in the fall of 2017, the Valley Courier was 30 years behind me. But I still loved local news. And, as luck would have it, ProPublica was just then launching an initiative called the Local Reporting Network.

The mission of the Local Reporting Network, or the LRN as we call it, is both simple and righteous. Mindful of the many local news organizations that are shrinking or disappearing, ProPublica partners with local newsrooms strapped for resources, to help them execute bold investigative projects. The first group of LRN partners published stories in 2018. And one of that first group’s members was Christian Sheckler, then a reporter at the South Bend Tribune in Indiana.

Sheckler was not the kind of reporter you see in moviedom. He does not swear. He is unerringly polite, and I do mean unerringly: I’ve never seen him say a mean thing to anyone. He is earnest and humble. But don’t underestimate him; he is also dogged — and a true believer in journalism as a force for good.

When Sheckler applied to the LRN, he was 29. He’d been a reporter for six years, four in South Bend and two in Fort Wayne. He wanted to dig into the criminal justice system in nearby Elkhart, where, according to his application letter, there was a “decades-old pattern of misconduct.” He believed reporting could produce answers about why some people had been wrongfully convicted and “an accounting” from public officials.

To do what he wanted, he needed time. In words that will resonate with every reporter who’s ever churned out five, 10 or 15 stories a week at a small or midsize daily, Sheckler wrote that he needed “a sabbatical from the press conferences and school board meetings that, in today's understaffed newsroom, can stand in the way of the most ambitious investigative journalism.”

In Escondido, I once had six stories in one day’s paper. Reading Sheckler’s application, I knew where he was coming from. And I wanted to go back there, if he was willing. I asked Sheckler if he’d be up for me partnering with him on this project, and he graciously agreed.

We set to gathering up records, which proved surprisingly difficult as a judge barred us from getting an array of documents that are routinely available to the public. She barred us from seeing police reports included in court files. She barred us from seeing trial exhibits that had been shown to jurors. Only after we filed a complaint with Indiana’s public access counselor were we able to get some, but not all, of the records we wanted. Meanwhile, when we asked the city of Elkhart for certain other records, we were told the documents were in storage, in a box, and that other boxes were in front of that box, and the city didn’t have anyone available to move the boxes blocking the path to the box with the records.

Sheckler and I wrote a dozen stories in 2018 and then more in years after. We investigated how poor policing led to wrongful and questionable convictions. We exposed dubious investigative practices and a lack of police accountability. We found that of the Elkhart Police Department’s 34 supervisors, 28 had disciplinary records and seven had opened fire in at least one fatal shooting. One officer was promoted to sergeant after receiving 11 suspensions, 15 reprimands and one verbal warning. (“He was promoted in the wake of all this?” one criminal justice expert said to us. “That’s very strange. ... I have no explanation for this. ... This is bizarre.”)

In the wake of our joint investigation, the city’s police chief was suspended for 30 days. Then he resigned. The city’s mayor abandoned his reelection campaign. The city commissioned an outside study of its police force, which found that officers were viewed in the community as “cowboys” who engage in “rough treatment of civilians.” The 97-page study criticized the department’s lack of accountability and its “vague and non-descriptive” use-of-force reports. In 2022, Keith Cooper, a man whose wrongful conviction we’d written about in 2018, received $7.5 million in a record settlement with the city, which apologized for its handling of his case.

This year, the fallout has continued. In 2018, Sheckler obtained a video showing two Elkhart police officers repeatedly punching a handcuffed man inside the police station’s detention area. We wrote up what the video revealed, and ProPublica’s Lucas Waldron analyzed and edited the footage. In 2019, a federal grand jury indicted the two officers on civil rights charges. Both officers eventually pleaded guilty to one count each. Last year, one of the officers, Cory Newland, was sentenced to 15 months. (His lawyers, in an email to ProPublica, wrote that Newland “long ago accepted full responsibility,” adding, “It is clear to us and to all who know Cory, that his conduct was not representative of his true heart and character as a person.”) Joshua Titus, the second officer, appeared for sentencing just this month — and received a year in prison.

At the sentencing hearing, in federal court in Hammond, Indiana, Titus expressed gratitude for the video being made public by the Tribune and ProPublica. He’d been dealing with severe post-traumatic stress disorder from his service in the Air Force, Titus said. “I was in denial of my psychological issues,” he said, adding that the video’s release “opened my eyes and gave me a renewing of my soul.” Publication of the videotaped beating also “helped change the culture at the Elkhart Police Department,” he said.

Titus’ attorney, Mike Allen, of Cincinnati, is a former police officer himself. Allen told me of Titus, “He’s a good man that served his country, and served his country well and honorably, who made a mistake and is now paying for it.” Titus is already getting counseling, Allen said, and is likely to get more help in the federal prison system. As for what Titus said in court about being thankful for the video’s release, Allen told me, “The thing about him is, if he says it, he means it.”

Elkhart, Indiana, police officer Joshua Titus (Obtained from Elkhart Police Department)

In journalism, we sometimes indulge in the fantasy that our work will always have immediate impact, with every flaw we’ve exposed getting addressed and resolved within days, weeks or months. Readers want that too. But the reality is sometimes slow, incremental change over years. The criminal prosecution launched against these two officers didn’t conclude until five years after we first reported on the videotaped beating.

In 2021, I did a second tour with the LRN, partnering with Nashville Public Radio’s Meribah Knight to write about children being illegally arrested and jailed in Rutherford County, Tennessee. Knight has stayed with this story for more than three years, doing work that has resonated in and beyond Tennessee. After we published our first story, 11 members of Congress sent a letter asking the Department of Justice to open an investigation into Rutherford County’s juvenile justice system. Subsequently, the judge who had been in charge of that system announced she would not run for reelection.

Now the story is the subject of a podcast series hosted by Knight and produced by Serial, ProPublica, Nashville Public Radio and The New York Times. The first two episodes just dropped. I hope you’ll listen.

In South Bend, the Tribune’s top editor when the Elkhart project was published was Alan Achkar. (He’s now the executive editor at the St. Louis Post-Dispatch.) Newsrooms are accustomed to fielding a lot of complaints, Achkar said. But with the Elkhart stories, readers wrote and called to say thank you. “I stopped counting the emails,” Achkar said. “It was encouraging, it was heartening, it was validating.”

As for Sheckler, he’s now 34. In the years since he began digging into Elkhart, he and his wife have had two children. Last year, Sheckler left the Sound Bend Tribune — and journalism. In journalism, “the pay’s not great,” Sheckler said. He wanted more stability for himself and his family. But he also wanted to keep doing work that he believed in, that was important and rewarding, so he took a job at the Notre Dame Exoneration Justice Clinic. He’s the clinic’s staff investigator. “I wanted to still be in a fight, on the right side of a fight. And this was a great opportunity to do that,” he said.

Sheckler is grateful for his time at the Tribune. And he’s grateful his work in Elkhart made a difference: “People took the reporting seriously. There was accountability.”

In the five years since Sheckler and I worked together to investigate Elkhart, the LRN has expanded and created change in communities across the country. To date, ProPublica, through the LRN, has partnered with 71 newsrooms on 90 projects. Exceptional reporters have done extraordinary work in Alaska; Memphis; Palm Beach, Florida; Rhode Island; Vallejo, California; and points beyond.

At the Tribune, another reporter took over the public safety beat that Sheckler had covered for years. That reporter has since left, and now the Tribune is looking to hire a replacement. The Tribune has put up a job posting for a public safety reporter, looking for someone who will “write about serious crime, scrutinize police tactics and spotlight social issues,” and chase challenging stories “with passion.”

by Michael D. Sallah and Mike Wereschagin, 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.

After tests showed that breathing machines made by Philips Respironics could spew dangerous particles and fumes into the lungs of patients, the company in April 2021 decided to stop shipping the devices from its factories near Pittsburgh.

Philips notified the Food and Drug Administration and said it was considering a recall.

But for the distributors of the devices, the company had another message: Keep selling them.

Despite the findings of its own scientists that showed the machines posed critical risks to patients, Roy Jakobs, now the CEO of parent company Royal Philips, told his employees that the distributors could continue to sell the devices in their inventory, according to testimony in federal court.

The revelations that unfolded during a hearing in Pittsburgh last week over the parent company’s potential liability for damages casts new light on the inner workings of a global corporation accused of risking the health of patients who used its sleep apnea machines and ventilators, in some cases to stay alive.

“They’re still telling customers who have these devices that they can keep using them,” Caleb Seeley, a lawyer whose firm represents thousands of plaintiffs in claims against the company, told U.S. District Judge Joy Flowers Conti.

An investigation by the Pittsburgh Post-Gazette and ProPublica published last month showed that Philips kept secret more than 3,700 complaints about the faulty devices over the course of 11 years before eventually initiating one of the largest recalls of its kind.

While lawyers for Royal Philips argued in court that the parent company should be shielded from claims and that the responsibility lies with the U.S. subsidiary, Philips Respironics, attorneys representing thousands of patients countered that decisions over the safety of the company’s operations were made at the highest levels of the Dutch corporation.

Philips said in response to questions from the Post-Gazette that Jakobs approved the sale of the machines held by distributors because Philips was still assessing the risks of the devices and its “understanding of the issue was still evolving.”

The company launched a recall to pull the machines from the shelves in June 2021 — two months after the halt on shipping — when additional data became available, Philips said in a statement.

The decision was made “after careful consideration of a reasonable worst-case scenario and in an abundance of caution,” the company said.

But for the two months leading to the recall, Philips did not warn the public that the company had found the risks to patients to be “unacceptable” and that foam breaking down in the devices was emitting chemicals that could cause “life-threatening” injuries or “permanent impairment,” records show.

The move by the company to allow the sale of the defective devices while its own experts were warning about the dangers drew sharp criticism from public health experts interviewed by the Post-Gazette and ProPublica.

“It’s disturbing to hear that they put a hold on the machines at the factory and then it’s being distributed” by the suppliers, said Dr. Robert Steinbrook, director of Public Citizen’s Health Research Group in Washington, which lobbies on behalf of patient safety. “It doesn’t make a lot of sense.”

The evidence disclosing Philips’ directive, which was presented in a slideshow at the Oct. 17 hearing, is the latest in a series of efforts by plaintiffs in court to show how decisions by the company delayed safety measures in what would grow into a worldwide health crisis.

Since the recall two years ago, Philips has changed course and said further tests have shown there is no long-term health impact from the foam — prompting the FDA to issue its own statement on Oct. 5 to say the company’s tests have not been adequate to “fully evaluate the risks” posed to users.

Though medical experts say it can take years to establish any links between the machines and illnesses, FDA records show at least 2,000 cases of cancer have been reported by health care providers and users of the devices, along with 600 kidney and liver ailments and 17,000 cases of respiratory infections.

During the court hearing last week, lawyers for the plaintiffs argued that top executives in Amsterdam for years were aware of the problems taking place in the U.S. involving the machines.

Jakobs had been chief business leader since 2020 of the company’s Connected Care unit, which oversaw the breathing devices. He was named to the CEO position in 2022.

Lawyers for the plaintiffs, who are suing Philips in hundreds of injury claims and a class-action suit to force the company to pay for medical monitoring, told Conti that former CEO Frans van Houten also took on a key role in the U.S. operation.

While leading the company in 2015, van Houten flew to Washington to meet with the FDA to discuss safety issues that had emerged at the Philips plant in Cleveland, Seeley told the court.

In a case that was unrelated to the breathing machines, the company had received warning letters from the FDA over a failure to file reports to the government about problems involving medical imaging devices made at the facility, records show.

During the visit, van Houten met with Jeff Shuren, the head of the FDA division that oversees medical device safety, and Robert Califf, now the agency’s commissioner, FDA records show.

Seeley said van Houten reportedly assured the agency’s top administrators that Philips would be making greater strides to meet safety thresholds.

The previous year, Philips temporarily shut down the Ohio facility after the FDA inspected the plant and found “manufacturing control” problems that had not been properly addressed, the company said.

Philips said in a statement that “we regularly engage with the FDA, and we are committed to continuing to do so.”

Since the June 2021 recall of the breathing devices, Jakobs has attempted to distance the parent company from the crisis, saying during an earnings call in May that the complaints about the machines were handled by the U.S. subsidiary.

“They did some action and they closed it and carried on,” he said to shareholders.

Jakobs and van Houten have previously declined to comment to ProPublica and the Post-Gazette on the company’s handling of the tainted machines. After the recall, then-CEO van Houten said, “I very much regret the impact of the … recall on patients, care providers and shareholders.”

The fight by the parent company to separate itself from the myriad lawsuits comes as more plaintiffs step forward to join the legal cases against Philips and as government scrutiny of the company’s actions deepens.

Just days after the Post-Gazette and ProPublica published the initial investigative story in September, top members of Congress called for immediate action, with Sen. Richard Blumenthal, D-Conn., demanding an investigation and a crackdown on the company by the Justice Department.

Conti said during the hearing last week that the motion by Philips to dismiss the parent company from the proceedings could have sweeping implications for some of the world’s largest corporations. One of the reasons: Multinational companies are made up of many different subsidiaries that operate in different countries with various levels of liability.

Royal Philips controls a global empire with subsidiaries operating across more than 100 countries, and it reported more than $18 billion in revenue last year. Top executives of an operation that large can’t micromanage every plant in their domain, Michael H. Steinberg, a lawyer for Royal Philips, argued at the hearing.

“Philips has [quality] controls,” Steinberg said. “Whether people follow those controls, that’s a separate issue.” Its lawyers argue the company should only have to fight one of the allegations against it: negligence in how it handled the recall — and even then, only for complaints filed in Pennsylvania, the jurisdiction of the federal court hearing the case.

In several high-profile cases, courts have shielded major parent companies from the liability of their subsidiaries, setting legal precedents that entire corporations have organized themselves around, the lawyer for Philips told the judge. “Corporations are trying to be efficient, trying to mitigate risk,” Steinberg said.

Lawyers for the plaintiffs countered that the legal protections normally given to parent corporations don’t apply in the Philips case. Seeley painted a picture of an organization with few boundaries, where top executives like Jakobs weighed in on decisions as minute as what Philips Respironics’ employees should tell their customers.

“Philips is unusual. It’s not the norm,” Seeley said.

One legal expert reached by the Post-Gazette said the evidence in the case, including the actions taken by the top corporate leaders, may ultimately be used in legal matters beyond the liability battle.

“The information that comes out is about who knew what and when did they [know] it,” said Michael Gonzalez, an Ohio lawyer who advises companies on health care compliance. “It’s not only about liability, but the culpability for [violating] the rules.”

Madris Kinard, a former FDA analyst who has examined many of the complaints filed with Philips about the defective machines, said the company was aware of the breakdowns in the devices years before the recall. “They could have acted earlier, and they could have acted with integrity when learning of the risks posed by the foam,” said Kinard, founder and CEO of the York, Pennsylvania-based health data group, Device Events. “This Philips recall is going to be held up as an example of what not to do.”

by Meribah Knight, WPLN/Nashville Public Radio

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

It has been a little over three years since I began my reporting on juvenile justice in Tennessee. Until then, I hadn’t paid much attention to juvenile courts. For a reporter, they’re difficult to cover with any kind of intimacy. They are shrouded in secrecy in a way adult courts are not. The records are sealed. The proceedings are mostly private. And it’s for good reason: The dumb stuff you do as a kid shouldn’t follow you into adulthood.

But this privacy has its downside, because it can shield the adults in charge from accountability. And as I soon found out, juvenile justice in the state does need someone — maybe a reporter — to pay attention.

Tennessee has 98 juvenile courts and even more juvenile judges. Those judges have a lot of discretion, making decisions on everything from whether to take a case to whether a kid should get locked up and for how long. What’s more, in Tennessee, kids have no right to a jury trial. So, there’s really no check to a judge’s authority in a case — they decide how to interpret the facts and the law.

“It’s like the Wild West out here,” one juvenile defense lawyer told me. “Each judge is its own county, some are hard on crime, some are progressive.”

I can tell you from my reporting, he’s not wrong. Along with my colleague Ken Armstrong, I embarked on this story, now a podcast, to try to see inside one county’s juvenile court system, where an all-powerful judge and the jailer she appointed were playing by their own rules and the children were caught in the middle. But I learned about other juvenile justice systems along the way.

In a county about 20 miles northeast of Nashville, I observed a hearing on a case involving a group of kids, one armed with a BB gun, who had stolen a phone and car keys from a teen couple. The hearing was for a 16-year-old girl who had held onto the stolen phone during the robbery. The assistant district attorney, known for his tough-on-crime approach, had charged her with aggravated robbery and filed a motion to have her case transferred to adult court. Despite pleadings by her attorney — this was the girl’s first offense, she’d been questioned by police without a parent or guardian present and was never read her Miranda rights — the judge granted the transfer. That means that this case, and any subsequent infraction, no matter how minor, would go straight to adult court, where the girl would face the same penalty as a grown-up. When the hearing ended, the girl, who stood less than 5 feet tall, was handcuffed and taken away with a bond set at $10,000. “I about died,” her lawyer told me afterwards.

The woman who conceived of juvenile court at the turn of the 20th century, a Chicago social worker named Jane Addams, believed that children could be corrected and rehabilitated because of their young age. And she believed that juvenile courts could step in to help make rehabilitation happen, acting in loco parentis — in place of the parent. Which meant making decisions in the best interest of the child.

That was the hope for Sharieka Frazier, the mother of a boy named Quinterrius Frazier, who was featured in our original investigation. They lived in Rutherford County, Tennessee, and when Quinterrius was in his early teens, he started running away, disappearing for a day or longer and hanging out with older kids. It worried Sharieka no end, so she started to track his phone. She’d go knock on doors looking for him.

Sharieka Frazier hoped the juvenile justice system would help her son. Instead, he wound up in prison. (Stacy Kranitz, special to ProPublica)

But as Quinterrius got older, his mother began to lose her grip on him. He stopped playing basketball, a sport that had kept him focused and engaged. And he started hanging out with older kids who spent their free time on less wholesome activities. So Sharieka turned to the juvenile justice system for help. She called the police and took out a runaway petition (treated as a warrant) on Quinterrius to get him back home. “I just figured anything’s worth trying at this point,” Sharieka told me. “I was desperate. I didn’t have any help. I didn’t know what else to do. So that was where I turned.” Sharieka isn’t an outlier. I came across a number of cases where it was parents or relatives who made that first call to police, hoping law enforcement would step in to help.

As years passed, Quinterrius got sucked deeper and deeper into the juvenile justice system. Rehabilitation didn’t materialize. But a life of incarceration did.

When you spend time in juvenile court, you can still see the remnants of this rehabilitative mission. It’s there in the lingo of the court: There are “petitions” or “summons” instead of “warrants,” “juvenile delinquents” instead of “criminal defendants.” Courts make “determinations” on cases rather than handing down “convictions.” There are juvenile “detention centers” instead of juvenile “jails,” youth “development centers” instead of youth “prisons.”

But after years of covering the juvenile court system, I’ve come to realize that this belief in treating kids differently isn’t much more than semantics. During my reporting, I saw what amounted to a carbon copy of the adult system.

Rutherford County Juvenile Detention Center, where for years children were jailed illegally (Stacy Kranitz, special to ProPublica)

In Rutherford County, where our new podcast takes place, children were wrongfully arrested and jailed illegally for years. At least hundreds, likely thousands of kids, were stripped of their civil rights, arrested and held in jail when their alleged offenses didn’t meet the state’s legal criteria for incarcerating children. Some were then placed in solitary confinement. (You can read our 2021 investigation.) But just how much this juvenile justice system has strayed from Addams’ ideals, and the ways that the officials and court staff are complicit in that, is what kept me reporting on this story for years after the ProPublica articles were published.

I needed to clearly understand exactly how this had happened and to let you, the listener, hear directly from the people responsible, the people impacted and the people who tried to fight back. Because this wasn’t some state secret. Some of what was happening to kids in Rutherford County was known to officials. Years before its juvenile court was mired in lawsuits, the federal government had cited it for keeping kids locked up for too long. The county’s juvenile judge, Donna Scott Davenport, typically sentenced kids to two to 10 days in jail for cursing in the courtroom, which was common. Davenport was reprimanded for it, which led to a loss of grant money and some bad PR, but she didn’t seem bothered. “Was I in violation?” she told the local paper. “Heck yes. But am I going to allow a child to cuss anyone out? Heck no.”

A 2020 report by Human Rights for Kids, a nonprofit that investigates and reports on the human rights of children, ranked Tennessee one of the worst states in the country for its inability to protect the rights of children in the justice system. When our reporting on Davenport’s behavior came out, the local university where she was an adjunct lecturer cut ties with her. Later she announced she would not seek reelection and retired at the end of her term.

“Despite what you may hear about in the media, there is no such thing as ‘scaring a child straight,’” said Kathy Sinback, the longtime administrator in Davidson County’s juvenile court. “The evidence shows that children struggling with behavioral issues have the best outcomes when they are provided with support, encouragement, and positive opportunities — not isolation, fear and shame.”

I heard this same sentiment from the young people I spoke to. I met with one young man who was first arrested for truancy at 12. It was right after his mother died of a drug overdose and he was sent to live with a grandmother he barely knew. He wound up spending a decade in prison. “I wasn’t really a bad kid,” he told me, “ I was just a hurt kid.”

When I asked a few longtime juvenile court lawyers and administrators what they’d tell families who found themselves in the crosshairs of this system, their advice was to pay attention, ask for representation and don’t expect harsh punishments to fix a kid’s bad behavior. Chris Kleiser, a public defender of kids in Knox County, recommended asking for a lawyer for your child “at the earliest possible stage. And that includes if law enforcement wants to speak to your child before charges are ever brought.”

But even access to a lawyer isn’t guaranteed. Recently, the dearth of lawyers available to judges has hit a crisis point in Tennessee. According to the state’s administrative office of the courts, nearly half of all cases with a court-appointed lawyer are in juvenile court, and finding lawyers willing to take these cases is harder than ever. The juvenile judge in Henry County said her list of available lawyers is the shortest it has been in her 17 years on the bench. What’s more, Tennessee’s reimbursement rate for these lawyers — $50 an hour — is the lowest in the country and it hasn’t changed since 1994.

Addams conceived of juvenile court with a clear-eyed mission to rehabilitate the child. In Tennessee the juvenile delinquency statute is explicit: Decisions must be “in the best interest of the child.” But, as one lawyer put it to me, “that means whatever the judge thinks.”

Some places have explored newer and more child-focused approaches. In Nashville, for example, juvenile Judge Sheila Calloway launched Tennessee’s first restorative justice program for youth offenders, through which children accused of crimes as serious as aggravated burglary, felony theft or even homicide can be diverted away from the court system completely. Instead of meting out justice in a courtroom, a community-based organization guides conversations between victims and offenders, working toward truth and reconciliation and making meaningful amends.

“The less we use draconian measures, the more successful we are,” Calloway said when the program launched in 2018.

Davenport, who was featured in the podcast, did not subscribe to that point of view. Over and over she said, “​​We don’t punish our children at all. It’s all about treatment.” “I want the children that come in front of me to leave better than they came in,” she said. But Davenport’s actions belied her words.

Watch video ➜

In Rutherford County, kids as young as 7 were being jailed, in violation of the law. And Tennessee is moving further in Davenport’s direction: Today, state lawmakers are working to make harsher sentences for children more accessible to judges. Waiting in the wings for the next legislative session are a flurry of bills that would make it easier to transfer a child to adult court and increase juvenile punishments.

The bills have been criticized by juvenile attorneys, the ACLU and national experts. And the concerns raised about the bills also showed up in my conversations with lawyers, judges and experts, not to mention dozens of people jailed as kids: increases in recidivism, educational disruptions, mental health issues, trauma and a boatload of other negative outcomes.

“You want to believe that you can trust your justice system and your judges and with your children,” said Karerra Brewington, who was arrested as a child and whose brother was jailed repeatedly for much of his youth. “But you know, it ruined my life, it ruined my brother’s life.”

Another young man, Dylan Geerts, was 15 when he was illegally jailed by Rutherford County for breaking into unlocked cars and stealing a small radio, some loose change, a hat, a phone case and cologne. Dylan had never been arrested before, let alone jailed. But when police took him to the Rutherford County Juvenile Detention Center, staff there locked him up for four days. He proceeded to unravel emotionally and mentally.

I spoke with Dylan eight years after his incarceration. He’d become the named plaintiff in a class-action lawsuit against Rutherford County over its illegal policy that jailed so many kids, including himself. (Eventually that suit was settled and Dylan got $25,000 from it.) I asked him what he thought of Davenport’s statement that children should leave the system better than when they arrived. He looked right at me, shook his head and said, “They’re not coming out better than they went in.”

Dylan Geerts was illegally jailed in Rutherford County when he was 15. (Stacy Kranitz, special to ProPublica) Listen to and Follow “The Kids of Rutherford County”

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On a below-freezing morning in March 2013, Israel Lepe Quezada was crushed to death while working on a dairy farm in northeast Wisconsin. The farm’s owner had found Lepe pinned between the engine compartment and hydraulic arms of a forklift-like machine.

Almost six years later, Blas Espinoza Cuahutzihua was killed when the arms of a skid-steer loader, another kind of farming vehicle, fell on him at the dairy farm where he worked near the Minnesota border. His last words, according to court documents, were to say goodbye to his family.

And one night in March of this year, Florencio Gómez Rodríguez drowned after he drove a skid steer into a 14-foot-deep pond filled with cow manure on a dairy farm where he worked.

When the daughter of the farm owner called 911, she told the dispatcher it was unlikely Gómez had survived. “Usually when you go down, you don’t normally come back up,” she said. “It’s thick.”

An autopsy found traces of manure in Gómez’s airway.

In all three cases, inspectors from the Occupational Safety and Health Administration, the federal agency responsible for workplace safety, went to the farms. And in all three cases, they left within an hour — without conducting investigations into the deaths.

The inspectors concluded they couldn’t investigate because OSHA is banned from enforcing safety laws on farms with fewer than 11 workers unless they have employer-provided housing known as a “temporary labor camp.”

Since 2009, at least 17 workers, most of them immigrants, have died on Wisconsin dairy farms. Twelve of the deaths happened on farms with fewer than 11 workers. OSHA did not inspect eight of those 12, each time citing the small farms exemption.

Records reviewed by ProPublica and interviews show that the agency may have more power to open an investigation into these farms than even its own leaders seem to be aware of.

When Lepe, Espinoza and Gómez died, it’s unclear whether OSHA inspectors tried to determine if the farmers who employed them provided housing for their workers before deciding there wasn’t a temporary labor camp and leaving. Had the inspectors taken a slightly closer look, they might have learned that the farmers had readily talked with law enforcement officials about providing housing for their immigrant workers.

And if the inspectors had read OSHA’s own files, they would have known that the agency has repeatedly, though inconsistently, inspected small farms after concluding a housing arrangement was a temporary labor camp.

How OSHA interprets and applies its definition of a temporary labor camp — and whether it should consider dairy workers temporary when farms produce milk year-round — has significant implications for the safety of thousands of workers in one of America’s most dangerous industries.

It is the difference between workers’ deaths, injuries or safety complaints being investigated or ignored. Without OSHA inspections, no one ever determined whether the deaths of Lepe, Espinoza or Gómez could have been prevented.

“Nothing was investigated at all,” said Lepe’s sister, Enedina Lepe Quezada. “He died. His body was sent home. We buried him. And then there was silence.”

Israel Lepe Quezada (Courtesy of Enedina Lepe Quezada)

The three men — all undocumented immigrants from Mexico — died from well-known hazards in agriculture. In two of the deaths, workers were performing dangerous tasks that OSHA includes on its “Dairy Dozen,” a list that is supposed to help inspectors and farmers ensure that farms are safe workplaces.

“We need to do everything to prevent worker deaths,” said Amy Liebman, a chief program officer with the nonprofit Migrant Clinicians Network who focuses on worker health and safety. “Whether they are on a smaller farm or a bigger farm, the idea behind OSHA going out is to understand what happened and stop it from happening again.”

ProPublica asked OSHA to explain why the agency didn’t open an inspection after the most recent death, that of Gómez in the manure lagoon. Reporters also asked OSHA to clarify whether it continues to view employer-provided housing for immigrant workers as a basis for opening inspections on small farms.

OSHA officials declined interview requests but responded to some written questions. The agency first said that Gómez lived “in a different town and paid for his own housing” and that the farm he worked for did not provide housing for its workers. Reporters told the agency that interviews and law enforcement records showed that Gómez and other workers lived in a house down the road provided by the farm owner and that another worker lived in a trailer on the farm. In response, OSHA officials said that an inspector hadn’t found evidence of a temporary labor camp.

What OSHA calls a temporary labor camp has varied from case to case. The agency has said it wouldn’t consider employer-provided housing a temporary labor camp if the workers’ jobs were permanent. Yet OSHA case records from 2009 to as recently as spring 2022 show that the agency has repeatedly described immigrant or Hispanic dairy workers who lived in employer-provided housing as temporary workers.

ProPublica identified five cases — four deaths and one complaint — on small Wisconsin farms where OSHA said housing for immigrant workers constituted a temporary labor camp, giving it jurisdiction to open investigations.

Former OSHA officials said the agency’s scattered approach might be a byproduct of disorganization or shifting priorities in a large bureaucracy that’s responsible for inspecting hundreds of deaths in all kinds of workplaces each year. Jordan Barab, a former deputy assistant secretary at OSHA during the Obama administration, said he was “mystified” that the agency would inspect some small farms that housed immigrant workers but not others. “It is essential for OSHA to have a consistent and consistently applied policy especially when it comes to controversial issues like this,” he said.

This uncertainty creates challenges for dairy farm owners and their workers. Farmers are often unaware that OSHA can set foot on their farms, much less conduct multiday investigations of deaths or injuries. Lawyers and advocates for dairy workers say they don’t even bother calling OSHA when workers are killed or injured on smaller farms because they’re so used to the agency citing the small farms exemption.

Lola Loustaunau, an assistant professor at the University of Wisconsin-Madison School for Workers, said that “it would really open the door for a lot of protections for workers” if OSHA consistently inspected small dairy farms that provide housing to immigrant workers.

“If they are politically interested in doing something,” she added, “it looks like they have all the basis to do it.”

The small farms exemption — a limitation Congress has written into OSHA’s budget each year since 1976 — was intended to protect small family farms from government overreach. It’s so ingrained in American agriculture that many dairy farmers assume that OSHA won’t even try to go onto their property.

So when OSHA officials were notified in October 2009 that a worker had drowned in a manure lagoon on a dairy farm in western Wisconsin, they first had to determine whether the small farms exemption would apply.

OSHA inspectors quickly learned that Val-O-Mo Farm, the dairy farm where José Candelario Zacarías Rayón died, had just five workers apart from the farmer’s family members. Zacarías and three other immigrant workers lived in a trailer on the property. In their report, the inspectors dedicated more than a full page to explaining why that trailer counted as a temporary labor camp that would put the farm under the agency’s jurisdiction.

Though dairy work is year-round, Zacarías and the other workers’ status as immigrants made the employer-employee relationship a temporary one, the inspectors wrote. There is “no defined milking season,” they wrote, but workers are hired “with the understanding that they were offered employment” for the “duration of their own choosing and that they were able to come and go from the farm to return to Mexico to visit their families.”

OSHA inspectors wrote that the on-site housing helped ensure the farm always had workers on hand. The workers didn’t own cars and relied on family and friends to help them get food and other essentials. (Wisconsin bans undocumented immigrants from getting driver’s licenses, as ProPublica has previously reported.) There weren’t any nearby alternatives for housing, and workers weren’t charged rent, creating incentives to live on the farm. Inspectors also found that “Hispanic employees were provided little time to rest in between shifts and therefore living offsite, although technically allowed, was impractical to the Hispanic workforce.”

The housing arrangement at Val-O-Mo remains standard at dairy farms of all sizes in Wisconsin and other parts of the country. Nationally in 2019 about three-quarters of dairy farms provided housing or a housing allowance to their workers, according to a survey commissioned by a dairy industry association.

OSHA’s investigation found that a guardrail at the push-off platform to the approximately 7-foot-deep manure lagoon had fallen off or been removed several years earlier and had never been replaced.

The farm owners told OSHA they had often warned employees to be careful near the edge of the lagoon’s platform. According to OSHA’s inspection report, Steven Weinzirl, one of the owners, “stated that although he was not denying he personally was at fault,” he believed Zacarías knew what he was doing “since he had been performing the task for nearly two years.”

Weinzirl installed a new guardrail on the manure lagoon after Zacarías’ death, records show.

OSHA also found that Zacarías had worked about 40 hours in the three days leading up to his death, and that he “was in a state of fatigue.” What’s more, inspectors noted, it “was not uncommon for the Hispanic farmhands to perform off the clock work beyond the normal set schedule.”

Workers had also complained about the long hours to the local sheriff’s department when it investigated Zacarías’ death. (The drowning was ruled an accident.) One worker said Zacarías sometimes slept in the cattle stalls in the barn, “saving him the time from walking from the cattle barns back to the trailer house to be able to go to bed so he would be able to get more sleep,” according to the Dunn County sheriff’s report.

One of Zacarías’ nephews, who worked on a nearby dairy farm at the time, said he rarely saw his uncle because they both worked so much. “You work and you sleep,” he said in an interview.

OSHA issued citations to Val-O-Mo for nine safety violations. The agency has few rules that pertain specifically to agriculture, and none about manure lagoons. But OSHA used its catchall “general duty clause” to cite the farm for failing to protect its employees from a recognized danger likely to cause death or serious harm.

Months after OSHA opened its inspection, Weinzirl questioned why the agency considered the trailer a ”temporary labor camp,” records show. But he agreed to correct the safety violations on the farm and paid $4,320 in fines. He declined to comment for this story.

Zacarías was 31 when he died. He left behind a wife in Mexico, according to relatives.

People who study agricultural safety say OSHA inspections are important because they prompt farms to become safer for workers, farmers and their families. Inspectors interview workers about hazards and safety measures, such as whether they received training to operate machinery in a language they understand or if they were taught how to deal with dangerous chemicals. The inspections also show workers that there’s a government agency they can call with confidential safety complaints, though many are unlikely to do so for fear of getting fired or deported. There can also be ripple effects, as other farmers might take corrective actions on their own farms.

After Zacarías’ death at Val-O-Mo, OSHA began to pay more attention to Wisconsin’s dairy industry, which had undergone a dramatic transformation from mostly small, family-run farms to larger operations that required hired labor. Many of those workers were undocumented immigrants.

The agency launched a program dedicated to improving safety on dairy farms across the state. And OSHA continued to use the temporary labor camp provision, even if inconsistently, to investigate deaths from known hazards on small farms. In one case, a 17-year-old boy from Mexico was crushed to death while herding cows into an indoor corral on just his 10th day of work.

Dexter Covey, a former OSHA inspector who conducted some of those investigations, said he understood that many dairy workers were immigrants who traveled back and forth from Wisconsin to visit their families in Mexico. He said inspectors used a clear set of criteria to determine whether housing provided to immigrant workers would allow OSHA to open an inspection. They also interviewed farmers and workers about the housing.

“I don’t think they were trying to hide anything,” Covey told ProPublica.

But the work Covey and his colleagues did to investigate deaths on small farms with housing doesn’t appear to have been well-known to top OSHA officials, both in the Midwest and nationally.

John Newquist, a former assistant administrator for the Midwest region, said he wasn’t aware of those investigations until ProPublica shared a copy of one of the reports with him. Had he known about the investigations, Newquist said, he would have encouraged inspectors to look for worker housing so they could investigate deaths on small farms. He said the small farms exemption was a source of frustration for OSHA inspectors “because you get out there and you can’t do anything because it’s a family farm.”

Years after Newquist retired, one family challenged OSHA’s right to inspect their farm, and the dispute made it to top agency officials in the Midwest. Those officials were resolute about OSHA’s jurisdiction.

In 2017, OSHA received a complaint about an employee who had been injured by a cow on a small farm in northwest Wisconsin. When OSHA inspectors arrived, and in the months that followed, the Byl family said they thought their farm was exempt from inspections because it only had five workers, records show. They questioned whether the trailer they provided should be considered a temporary labor camp when workers weren’t required to live there. Plus, they said their employees weren’t temporary.

“My farm is a family affair and we are taking this to heart,” the Byls wrote to OSHA. “We had no idea we qualified under OSHA standards and we are working diligently to comply.”

The Byls asked the Wisconsin Farm Bureau Federation and their congressional representative, Sean Duffy, to help them verify whether OSHA had jurisdiction over their farm. Both Duffy and the Farm Bureau wrote to OSHA on the Byls’ behalf. A Farm Bureau official even attended a meeting with OSHA and questioned its jurisdiction.

During that meeting, OSHA’s Eau Claire area director acknowledged the “grey or borderline issue surrounding the temporary labor camp definition” but maintained the agency had jurisdiction, records show. OSHA never determined whether a worker was actually injured and, in fact, identified a number of safety features on the farm, including 2-foot-high concrete barriers around the manure lagoon. Still, OSHA fined the farm $650 for its failure to provide workers with safety training or manuals for handling chemicals used on the job.

The Byls declined to comment. Duffy, a Republican who is no longer in office, did not respond to an interview request. A spokesperson for the Wisconsin Farm Bureau Federation referred reporters to OSHA.

Even as OSHA investigated some deaths on small farms in Wisconsin that provided housing to immigrant workers, the agency didn’t investigate other farms with the same sort of housing. In some of these cases, records show, the farmers had spoken openly to law enforcement and medical examiner officials about the housing they provided their workers.

That’s what happened when Lepe died on a farm just outside of Green Bay on March 3, 2013. Records show the owner of the farm told Brown County sheriff’s deputies that Lepe lived in a bunk room above the milk house. A medical examiner’s report notes that Lepe lived on the farm, Ranovael Dairy. OSHA records are limited due to the age of the case, so it’s unclear whether the inspector who went to the farm the following day ever learned this information.

Lepe began his shift at Ranovael Dairy around 6 a.m. on the day he died. The temperature was in the single digits, and he wore pants and a thermal undershirt under his camouflage insulated coveralls and boots.

Less than two hours later, Ray Vanden Elzen, the farm owner, found Lepe crushed by a telehandler, a rough terrain forklift that can be used to move or lift heavy materials and is known to pose significant safety risks. Lepe had gotten pinned between the machine’s engine compartment and its hydraulic arm, according to the sheriff’s report.

“The loader malfunctioned and the hydraulics released, causing the weight of the loaded scoop to fall to the ground,” a sheriff’s sergeant wrote. “This caused the cross arms to crush the mid section of the deceased victim’s body.”

Vanden Elzen could not be reached for comment.

Lepe had worked at Ranovael for about eight years and did “everything” on the farm, Vanden Elzen told Brown County medical examiners. He also told sheriff’s deputies that he knew that Lepe was undocumented and had used an alias “to avoid deportation for several years,” records show.

Lepe had grown up working with cattle on a small farm in the Mexican state of Jalisco, and he enjoyed his job in Wisconsin, his sister told ProPublica.

But it was dangerous. A few weeks before he died, Lepe told his sister that he had lost the tips of two fingers in a farm accident.

Lepe was 29 and a widower. He left behind a young daughter.

Almost six years later, another worker was crushed by similar machinery on a farm on the other side of the state.

Crawford County sheriff’s deputies investigating the Jan. 12, 2019, death of Espinoza on a farm in Steuben, in western Wisconsin, noted that he lived on-site. The farm owner, Eugene Fritsche, even told deputies that Espinoza and another worker left the farm “only one time a week to go shopping for food,” and that they “always stayed on the farm and sent all of their money back to their family in Mexico,” according to a sheriff’s report. The county coroner also said that Espinoza lived on the farm.

Despite this, an OSHA inspector who spoke with Fritsche noted that “the farm did not supply housing” for the two workers. It’s unclear how OSHA reached that conclusion.

Espinoza had been standing next to a skid steer, removing manure and mud from the machine, according to a report from the sheriff’s department and an ongoing wrongful death lawsuit filed against the farm by Espinoza’s family.

At some point, Espinoza became pinned between the machine’s cab and hydraulic arms, which crushed his thighs and abdomen. A co-worker in the milk house heard him scream and ran over.

Fritsche told deputies that he thought Espinoza had accidentally activated the skid steer’s arms to move them downward. He said the machine had safety mechanisms, “but Blas did not have those engaged to lock the arms in place.”

The lawsuit alleges that Fritsche knew that the skid steer had mechanical problems but failed to provide the “necessary protection, training, or concern for Mr. Espinoza’s safety.”

In court records, the farm and its insurance company have denied the allegations. Their attorney declined to comment. A woman who answered the door at Fritsche’s home also declined to comment, as did a lawyer for Espinoza’s family.

Espinoza was undocumented, according to relatives. A sheriff’s deputy who asked Fritsche about his workers’ immigration status wrote that he simply “took what paperwork he was given” by them and “used that information on their employee paperwork.”

Espinoza was 45. He left behind a wife and two children back in the eastern Mexican state of Veracruz.

Local authorities ruled both deaths as accidents.

Since Espinoza’s death in January 2019, at least seven other workers have died on Wisconsin dairy farms. One was crushed against a wall by a cow. Another was disemboweled by machinery in a grain silo. Another was pinned under a tractor that had tipped over.

In the most recent death, that of Gómez, who drowned in a manure lagoon on March 28, the OSHA inspector asked about Gómez’s housing but failed to find out where he and other workers lived.

An OSHA inspector showed up to the farm in Melrose, in western Wisconsin, the morning after Gómez’s death and spoke to the owner, Donald Antal Jr. The inspector’s interview notes indicate that the Antal Dairy Farm employed six workers and that Antal said Gómez “did not live on our property.”

But Gómez and a few other men who worked on the farm lived together in a house provided by the Antals for their workers about a half-mile down the road from the farm, ProPublica learned through interviews and law enforcement records. Another worker lived with his family in a trailer on the farm. It’s unclear whether the inspector ever learned about any of this housing for workers or took it into account when deciding that the small farms exemption applied.

On the night he died, Gómez was supposed to be operating a skid steer to scrape cow manure off a barn floor and into the nearby manure lagoon. But nobody could find him.

His coworkers looked out to the black surface of the 150-by-50-foot lagoon. Manure lagoons pose well-known drowning risks; due to their steep walls and manure’s slippery texture, they are nearly impossible to get out of.

Through the dim light from the barn, workers could see several inches of white metal sticking out above the manure. It was a part of the skid steer.

Workers alerted Antal, who rushed to the manure lagoon. Antal’s adult daughter called 911: “A worker fell in the shit pit and sunk and they think he’s dead.”

The skid steer was submerged 15 feet from the edge of the manure lagoon. Firefighters used a boat to reach it so they themselves wouldn’t drown and linked a chain to the skid steer. Then Antal hauled it out with a tractor.

A window at the front of the vehicle was shattered, and manure had filled the cabin. Gómez was inside, slumped over in his seat. He died of asphyxiation, according to the medical examiner’s report.

Gómez had a blood alcohol concentration of 0.18%, more than twice the legal limit for driving. Bonnie Kindschy, the Jackson County medical examiner, said she has no way of knowing whether Gómez would have fallen into the manure lagoon if he hadn’t been drinking. His death was ruled an accident.

Kindschy called OSHA because she believed Gómez’s death was clearly work-related and she thought it needed to be investigated. And OSHA does investigate workplace injuries and deaths regardless of whether workers were intoxicated or using drugs.

But OSHA didn’t investigate Gómez’s death. No other agency that responded to the emergency that night asked whether the lagoon had a barrier in place to prevent people and machines from falling in or, if there was a barrier, whether it was strong enough to hold back a 6,700-pound skid steer.

A collection box for Florencio Gomez’s family at a Mexican grocery store where he used to shop in Eau Claire, Wisconsin (Maryam Jameel/ProPublica)

Jackson County Sheriff Duane Waldera said his department had looked into whether a crime was committed, not farm safety. “We didn’t look into barricades and how farms should be,” he said in an interview.

Antal declined to comment.

Gómez was 32. He was also undocumented, a family member told ProPublica, though the Antals found some type of U.S. identification card with Gómez’s name on it in the “farmhand living quarters,” according to the sheriff’s report.

A Veracruz native, Gómez had worked on Wisconsin dairy farms for about half his life and had worked at Antal Dairy for about 30 days before he died. He left behind a wife and a daughter. He had been saving up to bring them to the U.S.

Outside of their immigrant communities, the deaths of Israel Lepe Quezada, Blas Espinoza Cuahutzihua and Florencio Gómez Rodríguez received little attention.

After Gómez died, the owner of a Mexican grocery store and restaurant more than an hour north of Antal Dairy put a small donation box near the register. A photo of a smiling Gómez in a Green Bay Packers winter hat was taped alongside a handwritten note in Spanish. “We are asking for donations for our friend Florencio who suffered an accident at work,” the note read. “The help is for his family.”

In April, a small caravan of immigrant workers traveled across the Minnesota border to the town of Saint Michael to attend a visitation at the funeral home that handled the arrangements to send Gómez’s body home.

Many of the people who were at the farm the night Gómez drowned, including the medical examiner and the local fire chief, said they wonder if his death could have been prevented.

Tim Kunes, the chief of the Melrose Fire Department, said he learned OSHA had decided not to investigate when he returned to the farm a few days later and spoke with the owner of the farm. He said he was surprised to learn OSHA hadn’t opened an investigation.

Kunes runs a small farm himself, though he doesn’t have any employees. But he said most of his neighbors with dairy farms do have workers, and they’re often immigrants. All of the farms, he said, have fewer than 11 employees.

“So their magic number is 11 and above?” he said.

In general, Kunes said, he doesn’t like the idea of more government regulation or fining small farms. But he knows how dangerous farming can be.

“Could it have been stopped with a couple of simple measures?” Kunes asked of Gómez’s death. “Maybe. We’ll never know.”

Recently Kunes noticed something new when he drove past the Antal Dairy Farm: a fence around the manure lagoon.

Help ProPublica Journalists Investigate the Dairy Industry

Illustrations by Cuauhtémoc Wetzka for ProPublica

Mariam Elba contributed research. Jeff Frankl and Jeff Ernsthausen contributed data reporting.

by Cassandra Jaramillo

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In Ohio, a GOP-controlled agency rewrote language for a ballot measure that would guarantee access to abortion in the state constitution, swapping in new wording that opponents said was designed to confuse voters. In Missouri, a Republican official launched legal challenges that have stalled a citizen-led effort to pass a law guaranteeing reproductive health care. And in Michigan, a Republican lawmaker went one step further, introducing a bill that would undo a popular new access law.

In the year since Roe v. Wade was overturned, Gallup polling shows that a majority of Americans believe abortion should be legal, with two-thirds of those polled saying it should be permitted in the first trimester.

To protect access to reproductive care, coalitions across the country are organizing ballot initiatives — a democratic tool that enables proposed amendments to become state law with enough petition signatures.

But abortion-rights advocates say their opponents are increasingly matching their efforts with an assortment of legal and political challenges that have stalled or even blocked their ability to introduce initiatives.

To do so, anti-abortion lawmakers and others are using strategies from the playbook of conservatives who sought to restrict access to voting, even trying to change the rules for citizen-led initiatives. ProPublica found legislation or proposals introduced in at least four states in the last year that would undermine ballot initiatives adding abortion protections to state law.

Sarah Walker, policy and legal advocacy director at the Ballot Initiative Strategy Center, said that efforts to make ballot initiatives harder to pass are not new, but they’ve intensified after several wins for abortion advocates. Last year, voters in red states such as Kentucky and Kansas rejected amendments that were intended to restrict the procedure.

“Voters are smart, and they see through politicians who are trying to tilt the scales and the levers of power of democracy, and take away freedoms to make decisions about their lives,” Walker said.

Currently, efforts to bring the issue of abortion rights — both for and against — directly to voters are underway in at least 10 states, according to the Ballot Initiative Strategy Center, an organization that implements a national progressive strategy to support ballot measures across the country.

In at least one state, Missouri, voters in 2024 may face dueling ballot initiatives: one in favor of abortion access and another restricting the procedure.

In Ohio, abortion-rights advocates said their opponents, including the secretary of state, were willing to upend the entire ballot initiative process to keep a reproductive freedom amendment off the ballot. Voters didn’t back the proposed changes, and the amendment, which would make abortion legal in some cases, is on the November ballot.

Anti-abortion groups see such ballot measures as a threat — and an end-run — to their work with state legislatures to ban the procedure.

Carol Tobias, president of National Right to Life, said that countering direct-to-voters ballot initiatives has been an uphill battle for her group. She warned that the rise of such initiatives risks making state legislatures obsolete.

“Well, now if we’re going to start making our laws based on amending the constitution, I think constitutions become meaningless,” Tobias said.

Similar Strategies

Abortion-rights advocates say the fight to stop voters from protecting access to the procedure looks a lot like the fight to restrict voting rights in general. Many of the same Republican lawmakers who supported laws limiting access to the ballot box also seek to prevent citizen-led drives to enshrine reproductive health care into state constitutions, advocates say.

Walker said efforts to undermine ballot initiatives have played out in three ways: Officials have proposed laws changing the process, made legal challenges at each step of an initiative’s process or tried to make enacting the initiative more burdensome once it’s passed.

Officials in at least four states, Ohio, Michigan, Florida and Missouri, have used such tactics.

Last November, Michigan voters approved codifying abortion rights in the state with its reproductive freedom ballot initiative. Then roughly seven months later, state Republican lawmaker Neil Friske proposed bills that would amend the state constitution to remove the reproductive amendment as well as bring back a 1931 abortion ban.

“While unlikely to pass, this package should serve as a guideline for Republican pro-life legislators. This pro-life model should be the official Republican platform for life,” Friske said in a statement at the time.

In Ohio, abortion-rights advocates have faced a few hurdles to get their proposed amendment on the November ballot.

In May, Republican state lawmakers passed a controversial resolution to hold a special election to raise the threshold needed for a citizen-led amendment to pass. At a June event, Secretary of State Frank LaRose said he supported the proposal to make it harder to change the constitution in response to an effort to enact abortion protection.

“This is 100% about keeping a radical, pro-abortion amendment out of our constitution,” he said, according to audio obtained by a local Cleveland TV station. The proposal, known as Issue 1, which would have made ballot initiatives harder to pass, was defeated in an August special election.

Next, the Republican-led state ballot board in Ohio changed the language for the reproductive rights amendment. Instead of “fetus,” the board substituted “unborn child.” Ultimately, a ruling from the Ohio Supreme Court has allowed the language to stay for the upcoming ballot measure.

Catherine Turcer, executive director for Common Cause Ohio, an organization dedicated to pro-democracy efforts, said that the organization supports the reproductive freedom amendment and that the board’s summary is too partisan.

“It’s not fair to the voters of Ohio who go to the polls expecting accurate, neutral information,” Turcer said.

In Florida, the Republican attorney general, Ashley Moody, filed a legal challenge to the state Supreme Court in response to a ballot measure that would protect abortion access. In an op-ed, Moody said: “I am pro-life, unabashedly so. … But my decision to oppose the placement of Floridians Protecting Freedom, Inc.’s initiative on the ballot has nothing to do with my personal views on abortion.” Moody argued the amendment was “misleading.”

The Dobbs v. Jackson Women’s Health Organization decision, which overturned federal abortion protections in Roe v. Wade, was a victory for the National Right to Life, one of the oldest anti-abortion organizations in the U.S. Tobias, the group’s president, said the organization worked on a strategy to counter ballot initiatives seeking to add abortion rights into state law.

Tobias said the group’s members learned from their experience in Kansas, where voters decided to keep abortion legal in a state that voted for former President Donald Trump in 2020. “They were overwhelmed. It was hard for them to counter the message,” Tobias said. “They weren’t told that this was going to prevent the state from allowing any limits on abortion whatsoever.”

Abortion is legal in Kansas until the 22nd week of pregnancy.

Citizen Drives Followed Dobbs

The momentum with abortion-related ballot initiatives began before the Supreme Court overturned Roe last year.

In the 2022 midterm, abortion showed up on the ballot in at least six states, and in every state voters preserved access to abortion — including red states such as Montana, Kansas and Kentucky, where the ballot measures were intended to restrict the procedure.

Ryan Stitzlein, vice president of political and government relations for Reproductive Freedom for All, said that one change since the midterms is that there are fewer initiatives in the works for next year that would restrict abortion access.

“I think it’s an acknowledgment on that side that the momentum is not with them and it’s an uphill battle,” Stitzlein said.

Missouri, Florida, Colorado, Arizona, Maryland, Nebraska, Nevada and New York are all in various stages of the ballot initiative process, but they’re expected to get abortion protections on the ballot for 2024. College students in South Dakota have started gathering signatures to petition for a ballot measure in 2024, a local television station reported.

In Missouri, the secretary of state, Jay Ashcroft, oversees the citizen-led initiatives that end up on the ballot.

Ashcroft included ballot summary language that asks voters if they want to allow for “dangerous, unregulated” abortions from conception to live birth. Abortion rights proponents sued in response. A judge ruled against Ashscroft’s language.

“The court finds that certain phrases included in the Secretary’s summary are problematic in that they are either argumentative or do not fairly describe the purposes or probable effect of the initiative,” the judge’s order said. Ashcroft said he intends to appeal the decision.

If organizers can meet the signature threshold by May, the proposed amendment will be before Missouri voters in 2024.

Update, Oct. 24, 2023: This story was updated to note that abortion is legal in Kansas until the 22nd week of pregnancy.

by Andrea Bernstein and Andy Kroll

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In July 2015, Wisconsin’s Supreme Court shielded Gov. Scott Walker, then a rising Republican star with aspirations to the presidency, from a criminal investigation.

The court’s conservative majority halted the probe into what prosecutors suspected were campaign finance violations. One of the deciding votes was cast by Justice David Prosser, a conservative who had won reelection a few years earlier in a heavily contested race. During the race, a state GOP operative said if their party lost Prosser, “The Walker agenda is toast,” according to an email included in a trove of documents the Guardian surfaced. Another vote for Walker came from Michael Gableman, a justice who had also waged a contentious campaign for his Wisconsin Supreme Court seat.

The high court, determining the prosecutors had overreached, ordered the investigation’s documents destroyed. But not before the Guardian got its hands on a copy. And buried in the 1,500 pages was a reference to a key figure in propelling both Prosser and Gableman to victory: the co-chair of the right-leaning legal group the Federalist Society, organizer of dark money groups and conservative strategist Leonard Leo.

The Prosser and Gableman races were crucial skirmishes in Leo’s decadeslong, ambitious effort to shape American law from the ground up. It’s a project whose full dimensions are only now becoming clear. ProPublica detailed the arc of Leo’s activism in a recent story and podcast with “On The Media.”

If Leo’s name sparks a note of recognition, it’s usually because he was Donald Trump’s judge whisperer and a leading figure in helping create the 6-3 conservative supermajority on the U.S. Supreme Court. Leo realized decades ago it was not enough to have a majority of Supreme Court justices; he would have to approach the legal system holistically if he wanted to bring lasting change. To undo landmark rulings like Roe v. Wade, Leo understood that he needed to make sure the court heard the right cases brought by the right people and heard by the right lower court judges.

Leo at a dinner hosted by President Donald J. Trump at the White House in 2017. (Official White House Photos by Shealah Craighead)

Leo built a machine to achieve that goal. He helped ensure the nominations of justices from Clarence Thomas to Amy Coney Barrett. He used his closeness to the justices to attract donors to support his larger effort. He then used those donations to build a network of dark money groups supporting his candidates and causes across the U.S. And he helped elect or appoint state Supreme Court justices who were predisposed to push American jurisprudence to the right.

Wisconsin was where Leo honed his strategy. In 2008, in a racially charged challenge to the state’s first Black Supreme Court justice, Leo himself raised money for Gableman, according to a person familiar with the campaign. Leo passed along a list of wealthy donors with the instructions to “tell them Leonard told you to call,” this person said. All those people gave the maximum. Gableman won, the first time an incumbent was unseated in Wisconsin in 40 years. (Leo declined to comment to us on his role in that race.)

Then in 2011, state GOP operatives turned to Leo to boost Prosser. They hoped he would help them raise $200,000 for “a coalition to maintain the Court,” the emails show. Prosser won, by half a percentage point. (When the emails mentioning his race surfaced, Prosser defended his independence.)

In 2016, Leo got involved again. Walker had a vacancy to fill and had three people on his shortlist: two Court of Appeals justices and the former attorney for an anti-abortion group and Federalist Society chapter head, Dan Kelly. “Leo stepped in and said it’s going to be Dan Kelly,” a person familiar with the selection told us. Walker denied speaking to Leo, who said he didn’t remember. From 2016 until the present, a group called the Judicial Crisis Network (which is now known as the Concord Fund), was a regular donor to state judicial races. Leo has no official role at the JCN, which as a dark money group does not have to disclose its donors. But he helped create and raise money for it, and JCN often works toward the same goals as the Federalist Society.

JCN was a crucial financial supporter of the public campaigns to win support for Supreme Court nominees backed by Leo, from Chief Justice John Roberts to Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Coney Barrett. In Wisconsin, JCN sent increasing amounts of money to judicial races through circuitous routes. Sometimes the contribution flowed through a national political organization like the Republican State Leadership Committee. Other times, the money was sent to Wisconsin-based outfits.

Wisconsin is not the only state that Leo focused on. North Carolina shows the effects of more than a decade’s worth of big-dollar funding from his network and a torrent of negative ads questioning the integrity of the judiciary.

In 2022, after years of sustained campaign spending by the Judicial Crisis Network and allied groups, North Carolina’s high court flipped from a 4-3 Democratic majority to a 5-2 Republican majority. Months later, the court did something extraordinary: It reinstated a voter ID law that the same court, in its Democratic-led iteration, had found discriminated against Black voters. It also overturned a newly court-approved elections map that had produced an electoral outcome reflecting the state’s partisan split.

In Wisconsin, the battles over the high court continue to be fierce. In April, Kelly, Leo’s chosen candidate, ran to maintain a conservative majority on the Supreme Court. It was the most expensive judicial race in U.S. history, with both sides spending at least $51 million. But Democrats were activated by the U.S. Supreme Court’s ruling to overturn Roe and by election maps that had maintained Republican dominance in the Legislature in a state evenly divided along partisan lines. Their candidate, Janet Protasiewicz, won resoundingly.

But that hasn’t stopped Republicans from trying to regain control. In September, there was talk of impeaching Protasiewicz because of comments she made during the campaign about “rigged” election maps. That effort has subsided — for now.

Leo’s candidate lost in Wisconsin — but his efforts over the years have succeeded in something else: transforming seats on state Supreme Courts into political prizes. In many states, such judges are no longer viewed as independent arbiters from a branch of government that operates outside partisanship but as a kind of super-legislator. “That’s bad for the system,” Robert Orr, a former Republican North Carolina justice, told us. “It’s bad for democracy. It’s a very dangerous path to tread down.”

In a written statement, Leo said state courts “are more independent and impartial today than they were when trial lawyers and unions dominated state judicial races without any counter.”

The stakes for democracy are stark. Already, a University of Washington study ranking the health of democracies in states found North Carolina and Wisconsin have plummeted from two of the highest-scoring states to scraping the bottom.

One result of this project is clear. Today, the practice of deploying every weapon in the American political arsenal, from nasty campaign ads to spending by groups whose donors are hidden, is now a routine aspect of campaigns for the judges who rule on state laws and, in 2024, might well decide the outcome of elections in battleground states.

by Jessica Lussenhop, ProPublica, and Joey Peters, Sahan Journal

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The Minnesota attorney general’s office is investigating potentially exploitative real estate transactions that have targeted Somali and Hispanic immigrant homebuyers in the state.

The attorney general’s action follows a report by ProPublica and Sahan Journal last year that revealed how contracts for deed — an alternative home sale agreement made directly between a seller and a buyer — can lock purchasers into inflated prices and unfavorable terms, and sometimes lead to eviction and the loss of their life savings.

“We have received a high number of complaints about predatory lending practices,” Mark Iris, an assistant attorney general in the office’s civil rights division, said in a statement. “Our office is concerned with the potential for abusive lending tactics that extract wealth from already impoverished communities.”

The Sahan Journal-ProPublica investigation identified a rising market in and around the Twin Cities for contract-for-deed sales, particularly in the Somali community. Many buyers in the East African Muslim community avoid paying or profiting from interest because of their religious principles. Investors have been offering them contracts for deed as an “interest free” way to purchase a house and sidestep a traditional bank loan.

But several Somali homeowners said they purchased homes without understanding their contracts, which included huge down payments and balloon payments, some of which soar into the hundreds of thousands of dollars. The homeowners said they had been misled, and they told reporters they feared having to walk away from their homes and the money they’d invested.

Contract-for-deed home sales lack many of the consumer protections of a bank-backed mortgage loan. Homes can be sold for tens of thousands of dollars above their current market price, which makes them difficult to resell or refinance. If the purchaser misses a payment, the seller has the power to evict in as little as 60 days.

Based on the reporting, Sen. Tina Smith, D-Minn., convened a Senate subcommittee hearing in July on the issue, characterizing the contracts as “designed to fail.” She and other senators called for more consumer protections.

Home sellers and investors who use contracts for deed say that they provide a needed, alternative pathway to homeownership for some buyers, and that, when properly used, the transaction is a safe financial instrument. They deny abusive practices.

While contracts for deed are legal, sellers can run afoul of the law by charging excessive interest rates, targeting minority groups with unfair contract terms or using deceptive tactics to lure buyers. The attorney general’s office declined to say what, specifically, officials are investigating. In addition to complaints from the Somali community, Iris said, the attorney general’s office has received a large number of reports of questionable practices being used within the Hispanic community.

Mohamed Goni, executive director of the Central Minnesota Community Empowerment Organization, said he has heard stories about allegedly deceptive tactics used by some contract sellers. Goni’s organization is a nonprofit serving the Somali community in St. Cloud, about an hour northwest of the Twin Cities.

“It’s a way of robbing or putting people into more poverty,” he said. “In central Minnesota specifically there’s a huge, huge housing problem, so it’s really encouraging to see the AG stepping in and doing an investigation.”

Stories about problematic contracts-for-deed practices have been around for years, said Jessica Aliaga-Froelke, CEO of Hispanic Solutions Group in Bloomington. Several Hispanic clients told her they bought homes using a contract for deed because they had bad credit, could not get traditional mortgages or did not have Social Security numbers.

Aliaga-Froelke said the buyers were led to believe that after making huge cash payments for a period of time, they could refinance their loans at a later date.

“They are told, ‘Here, you can have your house,’ but technically they don’t know what they’re signing,” she said. Contract-for-deed sellers “know these people will never be able to refinance with a bank.”

Roxanny Armendariz, a financial counselor with Neighborhood Development Alliance in St. Paul who also works primarily with the Hispanic community, said she hopes the attorney general looks into the role that real estate agents play in pushing buyers toward contracts they can’t afford. Real estate agents sometimes connect homebuyers who don’t qualify for a bank loan with investors who do contract-for-deed sales in bulk. The investor purchases the home through their business or limited liability company, then resells it to the buyer at a price markup.

“They do want to hold these LLCs responsible, but what about the realtors involved? That is the piece that needs to be called out,” she said.

The attorney general’s office declined to provide further details about its investigation. The office said anyone wishing to submit a complaint about contracts for deed can fill out its Tenant Report Form online, or call 651-296-3353 or 800-657-3787.

by Nicole Santa Cruz

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This story is part of The Repatriation Project, a series investigating the return of Native American ancestral remains.

One afternoon earlier this year, Wendell Yellow Bull received a call from a longtime friend with word of a troubling discovery.

Objects from one of the most notorious massacres of Native Americans in U.S. history were in the collections of the American Museum of Natural History, his friend said. Some of them appeared to be children’s toys, including a saddle and a doll shirt.

Memories of what Yellow Bull had been told about the incident throughout his life came rushing back.

Yellow Bull is a descendant of Joseph Horn Cloud, who survived the 1890 massacre at Wounded Knee. He recalled being told that members of the U.S. Army’s 7th Cavalry Regiment surrounded and killed more than 250 Lakota people, including five of his relatives. And in the days that followed the incident on the Pine Ridge reservation in southwestern South Dakota, people had taken clothing, arrows, moccasins and other objects as trophies.

Word that a New York museum held children’s toys from that day was a tangible reminder of the indiscriminate killing.

“That wasn’t even war, it was just brutal killing,” Yellow Bull, who is a member of the Oglala band of the Lakota and lives on the Pine Ridge reservation, told ProPublica.

Yellow Bull (Dawn E. LeBeau for ProPublica)

On the phone that day, his friend asked if he wanted to try to bring the objects home.

He immediately said yes. Lakota descendants believe mourning over the massacre cannot end until the belongings of those who were killed are returned and spiritual ceremonies are conducted.

“If they are from the killing field, they need to come back,” he recalled telling her.

The objects’ long separation from the tribes whose members were at Wounded Knee underscores a key way in which the Native American Graves Protection and Repatriation Act has failed to bring about the expeditious return of cultural artifacts to Indigenous communities.

While the 1990 law requires federally funded institutions to notify descendant tribes in detail about Native American human remains they hold, its rules and procedures for cultural objects are so lax that tribes often are unaware of what was taken and where it’s held. Museums have taken decades to return human remains, delaying efforts to return cultural items. In addition, the law didn’t provide adequate funding for Indigenous communities to pursue repatriations. These factors have led to decadeslong delays for many tribes to reclaim objects that are rightfully theirs.

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NAGPRA “wasn’t crafted to be kind or help us along in our grieving process,” said Alex White Plume, who led the Oglala Lakota tribe’s repatriation efforts in the early 1990s and also has relatives who were killed in the massacre. “It was another attempt to keep us from getting our artifacts that were taken off dead bodies, and not only just at Wounded Knee, but it happened all across the Plains.”

Since NAGPRA’s passage, the AMNH has communicated sporadically with the Oglala Lakota, including sending a notification in November 1993 regarding hundreds of objects in its collections that might be affiliated with the tribe. The vague descriptions of the artifacts made no mention of Wounded Knee.

The museum said in a statement that it provided more detailed information about the Wounded Knee objects in 1997, when a group of Oglala Lakota, who also go by the name Oglala Sioux, met with museum officials and reviewed collections selected by tribal representatives. Other tribes with ties to Wounded Knee, such as the Cheyenne River Sioux, have also met with the museum.

“Periodic consultations with the Oglala Sioux on collections that are of interest to the Tribe have continued since then over various channels,” the statement said. The museum did not provide additional detail about its talks with the Oglala Lakota but said the tribe had not made a request for repatriation, which it described as “multi-year engagements in which museums are guided by the requests and priorities of the relevant tribe.”

Despite the communication between the tribe and the AMNH, the museum has yet to repatriate anything to the Oglala Lakota.

Left to Right: Wounded Knee survivors and brothers Daniel White Lance, Joseph Horn Cloud and Dewey Beard “We Basically Didn’t Know What We Had”

With the passage of NAGPRA, federally funded institutions faced a daunting mandate to document their collections. Some had never conducted a full inventory. And the nation’s oldest museums had, during the 19th and early 20th centuries, built massive encyclopedic collections by funding excavations and expeditions and encouraging soldiers and others to take Native American objects from battlefields.

At the time of NAGPRA’s passage, the AMNH, one of the country’s oldest and largest museums, had approximately 250,000 objects in its North American archaeological collection. It formed an Office of Cultural Resources with a registrar and two additional staff members to do the work. Other staff members also pitched in, according to the museum’s 1992 annual report.

James W. Bradley, a former director of the Andover, Massachusetts, museum now known as the Robert S. Peabody Institute of Archaeology, said in a NAGPRA training video: “We basically didn’t know what we had, and we had pretty good catalog control. But intellectual control — knowing what it was, making it available — we really didn’t know.” The law forced the museum “to do what we just had never gotten around to doing, which is to clean up our mess, find out what we had collected, what we had excavated,” he said.

For human remains, the law mandated a detailed accounting, including where they had been excavated and which present-day Indigenous communities might rightfully claim them. Lawmakers had initially wanted a similar item-by-item inventory of cultural items and sacred objects — which could include items like those taken from Wounded Knee, according to Congressional testimony. But such a requirement was seen as too onerous and expensive, so museums’ initial notices about objects sometimes mentioned only who had donated the item. Many would require additional research to decipher.

A 1993 memorandum from the National Park Service regarding NAGPRA outlines the details museums and federal agencies were advised to include in their documentation of Native American cultural items and sacred objects being considered for repatriation. (United States Department of the Interior)

“When these summaries reached tribal nations, there was not enough information about the origins of the objects, or the way in which the objects were cataloged, or even what the objects specifically were to enable people in those nations to know how to start reclaiming it,” said Margaret Bruchac, a University of Pennsylvania anthropology professor emerita who has worked as a repatriation consultant to museums and tribes.

Bruchac said “tribal nations did not have inside knowledge of museum cataloging systems, and museums did not have sufficient cultural knowledge about tribal materials. So it’s as though they were speaking entirely separate languages.”

The burden of researching the origin of the objects, some of them hundreds of years old, fell to tribal communities, White Plume said. If there’s a record that an object was from the Oglala Lakota, it should be given back without hesitation, he said, “yet they’re sitting there waiting for us to describe in detail the item that we want back.”

Among the notifications the AMNH sent to the Oglala Lakota was one, dated Nov. 16, 1993, listing hundreds of objects in such broad categories as “dress and adornment,” “ritual and recreation” and “unspecified/unknown.” Among them were the four relics from Wounded Knee.

A ritual and recreation item was cited as donated by Edgar Mearns in a 1993 NAGPRA summary provided by the American Museum of Natural History. (American Museum of Natural History)

Despite guidance from the National Park Service, which oversees the NAGPRA program, that museums reveal how they acquired the objects, the AMNH offered only two clues about their origin. In an entry classified as “dress and adornment,” it mentioned “Sioux: Bigfoot’s band” and the donor’s name, Edgar Mearns.

“A Responsibility to Fulfill”

As the United States confined tribal nations to reservations, a movement began among Native Americans in 1889 called the Ghost Dance religion. Through dances and ceremonies, some lasting days, they called on their ancestors to help restore their way of life. When it reached the Great Plains — where the government had seized more than 9 million acres of Lakota land — the nonviolent Ghost Dance had the “surrounding country in a state of terror,” according to an 1890 newspaper account.

The Bureau of Indian Affairs considered the Ghost Dance a threat and dispatched the military to enforce a ban on the practice. On Dec. 15, 1890, Indian Police were searching for Sitting Bull, a Hunkpapa Lakota chief, to question him about his involvement in the Ghost Dance. After encountering him at his home on the Standing Rock Reservation, the officers killed the chief, escalating tensions.

About two weeks later, Mnicoujou Lakota Chief Spotted Elk, who was also known as Big Foot, surrendered with his band to members of the 7th Cavalry. On Dec. 29, soldiers ordered the band of people, who had settled near Wounded Knee Creek, to turn over their weapons. A Lakota man’s weapon discharged, setting off a flurry of gunfire as adults and children ran for cover.

Horn Cloud, Yellow Bull’s great-grandfather, was 16 years old at the time of the massacre and later described what he witnessed to a researcher and writer named Eli Seavey Ricker. Soldiers had surrounded the Lakota when the gunfire erupted. “The shooting was in every direction. Soldiers shot into one another,” Horn Cloud told Ricker. As the Lakota fled, some defending themselves by grabbing weapons they had surrendered. Many sought refuge in a nearby ravine and “some ran up the ravine and to favorable positions for defense,” he told the researcher. When the shooting stopped, Horn Cloud had lost his parents, two brothers and a niece.

An Army captain, whose account was recorded in a Jan. 3, 1891 letter to an Army assistant adjutant general, said he arrived to find fresh wagon tracks and evidence that “a great number of bodies” had been removed from the site. The 8th Infantry buried 146 people in a mass grave, including 82 men and 64 women and children. “The camp and bodies of Indians had been more or less plundered,” the captain wrote.

A doll shirt donated to the AMNH by Mearns (American Museum of Natural History Anthropology Database)

A soldier named Frank X. Holzner was among those who gathered objects from the killing field, including a toy saddle, a doll shirt, beaver bones, an adornment piece and a bear claw, according to the museum’s handwritten accessions register. The AMNH’s 1895 annual report shows Mearns donated these objects to the museum that year. The museum record doesn’t mention how Mearns had obtained them.

The Army’s initial reports of Wounded Knee described it as a battle. But as more details emerged, including accounts of the killing of women and children as they ran away, the soldiers’ actions were criticized and the commander was investigated. (There have been periodic calls to rescind Medals of Honor awarded to 7th Cavalry troops. And in 1990, Congress apologized for the massacre.)

In the years that followed, Horn Cloud would camp at the site, sleeping on the graves of his lost family members to connect with them, a relative told the National Park Service in a 1990 interview. Horn Cloud and his brother, Dewey Beard, sought compensation from the government for the survivors of Wounded Knee. And Horn Cloud led the effort to erect a stone monument on the site in 1903. The marker lists some of the victims with an inscription, written by Horn Cloud, that says in part: “Many innocent women and children who knew no wrong died here.”

The cemetery marking the mass grave on the Wounded Knee site (Tara Weston for ProPublica)

Today, Wounded Knee is marked by a large red sign describing the incident and a small cemetery that was built over the mass grave. The cemetery is surrounded by a chain-link fence that is dotted with prayer offerings — tobacco wrapped in cloth. Last year, the Cheyenne River Sioux and Oglala Lakota tribes purchased 40 acres surrounding Wounded Knee to preserve as a sacred site. A bill before Congress would place the land into a trust status that would prohibit its sale without congressional and tribal approval.

On a recent afternoon, Yellow Bull, wearing a T-shirt reading “Wild Oglalas,” stood near the mass grave and talked about how generations of his family have honored the ancestors who lost their lives there.

Yellow Bull, a Marine veteran, father of six and local county commissioner, is determined to continue preserving the memory of Wounded Knee, he said, including improving the site, protecting it from development and reclaiming the objects that were taken from those who were killed.

“I still have a responsibility to fulfill,” he said.

After the Battle of Wounded Knee, only a small number of Big Foot’s Mnicoujou people remained alive. (John C.H. Grabill/Library of Congress/Corbis/VCG via Getty Images) “A Lot of Hurdles”

Cassie Dowdle, a NAGPRA manager for the 900-person Wilton Rancheria tribe, based south of Sacramento, said she has seen inequities in the resources tribes have for pursuing repatriations.

It’s Dowdle’s sole job to contact institutions across the country and use a database to track progress toward repatriation. When she met with representatives at California State University, Sacramento not long ago, she and museum staff sifted through more than 80 bankers boxes to inventory each object. During similar museum visits Dowdle has discovered collections that were never reported to the tribe and pieced together collections that had been separated and housed at various museums.

Wilton Rancheria recently added a staff member to help Dowdle and plans to soon add another. But not all Indigenous communities have such resources. Dowdle, a descendant of the Tule River Yokuts, calls it “unfair.”

“There’s a lot of hurdles, and I’ve seen a lot of tribes, where they ran out of resources,” she said. “They either felt defeated or didn’t have the bandwidth for it.”

The park service provides some grants to fund consultation and repatriation work to improve communication between the institutions and Indigenous communities, including researching museums’ collections. But some tribes don’t have the resources to navigate the grant writing process.

This year, the NPS awarded $3.4 million in grants to museums and tribes, the most since 1994. Even so, grants won’t cover the entire cost of a repatriation, said Rosita Worl, president of Sealaska Heritage Institute and a Tlingit citizen.

She estimates that successful repatriations can run to $100,000 or more. When the tribes represented by Sealaska Heritage have made a claim on an object, they’ve hired a researcher and sometimes sent a group to view it. If there’s a dispute with the institution, the tribe must hire a lawyer, and the costs can quickly increase. Worl said a disagreement over the proposed repatriation of a Teeyhíttaan Clan hat cost her organization $200,000. Ultimately, a full repatriation didn’t occur, and the Alaska State Museum retains partial ownership of the hat. The museum confirmed that a partial repatriation occurred.

“It’s outrageous that the tribes still have to go up against all of this,” she said.

For tribes that can’t afford a dedicated repatriation specialist like Dowdle, it usually falls to a historic preservation officer to navigate the process. Preservation officers are required by federal statute to manage historic properties and preserve cultural traditions. Those responsibilities often keep them “in triage mode,” making it difficult to also take on repatriation work, said Valerie Grussing, executive director of the National Association of Tribal Historic Preservation Officers.

“There’s an official list of duties as mandated by the National Historic Preservation Act, and repatriation is not one of them,” she said. “They already are having to pick and choose what’s a priority for their community.”

Chip Colwell, a former senior curator for the Denver Museum of Nature & Science who oversaw repatriations, said the funding and power imbalance between museums and tribes was evident in his work. Colwell said his museum’s staff tried to compensate for these inequalities by reaching out to tribes and offering resources and guidance, even when a tribe hadn’t contacted them. The museum’s administration also recognized that the notices they had sent to tribes soon after the passage of NAGPRA were inadequate, and used grant funding to collaborate with tribes on reissuing more detailed summaries of some of those objects. This led to the discovery of things they’d missed.

When the repatriation process fails, it’s frequently because museums are not “taking enough responsibility — moral responsibility — for finding ways forward with tribes,” Colwell said. “And then tribes often just don’t have the resources.”

In the case of objects from a massacre, Colwell wondered why a law is needed for a museum to return them. “I would hope that the American museum, in this case, is just trying to do the right thing,” he said, “and not pretending to be handcuffed by the law.”

There are signs that the AMNH is shifting its mindset. Last week, the museum announced steps toward a “new ethical framework” for its human remains collection, which includes individuals from Native communities. The museum will remove exhibits that include human remains and will devote more resources to reviewing its human remains collection, which includes increasing its “engagements with descendant communities.”

“It Doesn’t Belong to the Museum”

The Oglala Lakota don’t have a full-time repatriation specialist or permanent historic preservation officer. The work is instead a team effort by tribal officials and groups of Wounded Knee descendants.

“We don’t have the resources to go out and look for these items, we just hope that somebody tells us about them so we can go do it,” said Justin Pourier, who is coordinating the group’s efforts. Pourier, whose regular job is serving as a liaison between the tribal council and executive committee, is also filling in as historic preservation officer for the Pine Ridge reservation, which is roughly the size of Connecticut.

Pourier said he learned that objects from Wounded Knee were at the AMNH after Erin Thompson, an art crime professor, identified them while researching the museum’s annual reports. She contacted Yellow Bull’s friend, Mia Feroleto, an activist and magazine publisher who recently helped with the repatriation of more than 150 Lakota objects from the Founders Museum in Barre, Massachusetts. It was Feroleto who called Yellow Bull to tell him about the objects.

Yellow Bull, along with a tribal delegation and Feroleto, plans to meet with the museum’s officials to see anything that might be of interest to the Oglala Lakota.

It’s unclear what the tribe would do with the objects if they are returned. Yellow Bull said that decision will be made with other Wounded Knee descendants. But he is certain that the objects at the AMNH belong to and continue to represent the people who were killed, and should be returned so they can be properly mourned.

“It doesn’t belong to you or I, it doesn’t belong to the museum,” he said.

by Adriana Gallardo, ProPublica, and Jessica Miller, The Salt Lake Tribune

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

This story discusses sexual assault.

When Carmela arrived in Utah from a village in Oaxaca, Mexico, in 1998, she was a newlywed following her husband for his job and was four months pregnant with her first child. She had never seen an OB-GYN and was hoping to find one who spoke Spanish.

The doctor she found was David Broadbent. Early on, however, she said she noticed that her visits with him left her bleeding and in pain, which felt as if she had “eaten and passed a glass bottle.”

Following her appointments, she said she took warm baths to help ease that pain.

But she kept going to Broadbent, unaware that the way the doctor was treating her was unusual. Over the next 14 years, he delivered her three children, two sons and a middle daughter. Carmela trusted him because he was American-educated and spoke her language, and because she had never been told what to expect during such visits.

“I stayed for the language,” she said of why she kept seeing Broadbent despite her pain. “I stayed there because I didn’t know what a gynecologist does.”

But through the years, Carmela had her doubts about whether the pain she felt after her doctor appointments was normal. At one point, Carmela called her older sister in Mexico to ask about her own OB visits. “What do they do to you, sister?”

Her sister described her experience; no part of it involved probing of the anus or pain. “Yes, but what else?” Carmela recalled asking, hoping to understand if her experience was common. “That’s it?”

After that conversation, Carmela reasoned that the exams in Mexico weren’t as advanced.

Ultimately, the 45-minute drive to his office became too much for their family. Five years after she stopped seeing him, her perspective continued to change when her teen daughter, Ana, asked about what to expect from her first gynecological exam. Ana listened to distressing details about her mother’s visits with Broadbent, and about how those differed from other doctors Carmela had subsequently seen. And Ana began doing her own research in 2017, including reading patient reviews of Broadbent online. (Carmela and Ana are being identified only by their first names.)

“Mom,” she said, “something’s not right.”

In 2022, it was Ana who saw on the news that other women had accused Broadbent of sexual assault. Ana, now 21, worked with attorneys to make sure that her mother would be included among the 94 women who filed a civil lawsuit against him that year.

Broadbent’s attorney, Chris Nelson, has said the women’s allegations are “without merit,” but declined further comment, saying Broadbent’s lawyers will present their case in court. In the meantime, the doctor has agreed to stop practicing while police and prosecutors investigate.

The civil case will be heard on Friday by Utah’s highest court, which will decide whether to reverse a judge’s ruling that had previously dismissed it. Because their alleged assailant is a doctor, that judge decided, the case must be governed by medical malpractice rules rather than those that apply to cases of sexual assault. If the court sides with Broadbent, many of his accusers may lose their chance to sue because, under Utah’s medical malpractice rules, too much time has passed.

The central issue the justices will weigh: Were the alleged sexual assaults part of these women’s health care?

Medical Care or Sexual Assault?

When Carmela and the 93 other women filed their civil suit, they alleged Broadbent inappropriately touched their breasts, vaginas and rectums, without warning or explanation, and hurt them. Some said he used his bare hand — instead of using a speculum or wearing gloves — during exams. One alleged that she saw he had an erection while he was touching her.

The judge who dismissed their case last September didn’t consider its merits. Judge Robert Lunnen said they should have brought their case under Utah’s medical malpractice law. Instead, they had asserted that Broadbent’s painful and traumatic treatment of them was sexual assault. They want to sue him and two of the hospitals where he delivered some of their babies for civil damages.

State laws are generally silent on whether sexual assault lawsuits involving health care workers should be covered by malpractice laws, leaving courts to grapple with that question and leading to different conclusions across the country. The Salt Lake Tribune and ProPublica identified at least seven cases outside of Utah in which state appellate judges sharply distinguished between assault and health care in such cases.

Earlier this year, Utah’s legislature stepped in and passed a law affirmatively declaring that sexual assault committed in health care settings cannot be considered health care. This mandate means that a civil lawsuit in such a case does not need to be filed as a malpractice claim, which comes with more restrictive rules, such as a lower cap on financial damages for pain and suffering and a shorter window of time in which to file a suit.

But the law was not retroactive; it wouldn’t help Carmela and the 93 other women. So they appealed to the Utah Supreme Court.

Attorneys for Broadbent and the hospitals argue his alleged misconduct “arose” out of health care and, therefore, is covered by Utah’s medical malpractice law. They further argue that his actions could have been considered medically necessary.

“For example, several plaintiffs alleged that, during a scheduled gynecological exam, Dr. Broadbent inserted his fingers or a speculum into their vaginas or rectums in an abrupt or painful way,” the lawyers wrote in filings to the Supreme Court. “Because that touching occurred during a medically indicated vaginal exam, there is a question as to whether the pain the patient experienced was typical for a non-negligent version of such an exam or whether the pain was the result of negligence.”

The women argue in their lawsuit that what there is no question in their minds that what happened to them was sexual assault — not negligence or a part of their medical treatment.

The American College of Obstetricians and Gynecologists, the lead professional organization for OB-GYNs in the U.S, advises OB-GYNs to explain physical exams and only proceed after a patient consents, and categorizes touching patients’ internal genital area without gloves as a “sexual impropriety.” Those guidelines don’t address pain and bleeding.

Adam Sorenson, an attorney for the ​94 women, argue​s that what ​they experienced was not medical care, and ​he asked the justices to revive their case.

“A sexually abusive OBGYN,” he wrote in his court filings, “should receive no special treatment, protection, or leniency.”

“We Trusted Him and He Failed Us”

Carmela and several other Spanish speakers who have accused Broadbent of abuse rely on volunteer translators or bilingual family members to relay their experiences to lawyers.

For Ana, this has meant hours steeping in the details of her mother’s case. The retelling, through her voice, provided the needed details for her mother’s lawsuit.

“At every single appointment, over the course of a number of years and pregnancies,” the lawsuit states, “Broadbent would have [Carmela] undress and would feel her breasts and look into her vagina, occasionally inserting his fingers into her vagina. Then, when Broadbent went to perform a pap smear, he inserted a speculum, took a sample, and then inserted four fingers inside her, causing discomfort and bleeding. He then inserted his middle finger in [Carmela’s] rectum with a lot of force and would insert it repeatedly for a few minutes, causing bleeding and sensitivity.”

Processing this information was difficult, she said. “It was just sad. I was shocked.”

Carmela’s family home is lined with photos of her children and their accomplishments. Tucked in a closet is an album with the photos of Broadbent at the three births. The tall white man with glasses stands shoulder to shoulder with her husband, who is glowing in each picture at the sight of their newborn.

Ana describes looking at the delivery room photos as “maddening.”

“For him to be one of the first people that ever held me,” she said, “knowing what he did to my mom, that’s so infuriating.”

Mostly, Ana wants her mother to believe she is not to blame for the doctor’s actions.

“My mom feels a lot of fault that that happened to her … or why she didn’t come forward sooner,” she said.

Carmela follows the lawsuit’s every development with much attention, but it also causes her a debilitating mix of guilt and anger. That’s why she’ll be following Friday’s court arguments from home.

“I feel rage because we trusted him and he failed us,” she said. “I want this article to reach the ears of that gynecologist, for him to remember well all that he did to me when he would hurt my rectum and say it was for my own good.”

Mollie Simon contributed research.

by Caleb Bedillion, The Marshall Project

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

Three months after Mississippi’s Supreme Court directed judges in the state to ensure that poor criminal defendants always have a lawyer as they wait to be indicted, one of those justices acknowledged that the rule isn’t being widely followed.

“We know anecdotally that there’s a problem out there,” Supreme Court Justice Jim Kitchens said during a state House of Representatives committee meeting on the public defense system last week.

That means Mississippi’s “dead zone” — the period during which poor people facing felony charges are left without a lawyer while they await indictment — persists in many counties.

At the first court hearing after someone is arrested for a felony, a judge is supposed to decide whether the defendant can be released from jail and should appoint a lawyer if they can’t afford one.

In many Mississippi courts, that lawyer stays on the case for a short time to handle initial proceedings, including a possible motion for bond reduction, and then exits. Only after the defendant is indicted, which often takes months, is another lawyer appointed. In the meantime, no one is assigned to the case, even if the defendant is in jail.

“Mississippi stands alone as the only state that has this problem,” public defense expert David Carroll said at the state House hearing.

Carroll is the executive director of the Sixth Amendment Center, a nonprofit that studies state public defense systems and advocates for improvements. The center released a report in 2018 that found many defects in Mississippi’s public defense system, including the dead zone.

The Supreme Court’s rule, approved in April, was supposed to eliminate this problem. It says a lawyer can’t leave a case unless another one has taken over. All courts in the state must follow it.

Individual judges could face sanctions for not complying with the rule if someone files a complaint against them, Kitchens told legislators. Beyond that, however, Kitchens said it’s outside the purview of the Supreme Court to monitor local courts. “It’s not for us to go out and investigate whether that rule is being complied with,” he said.

When the rule went into effect in July, the Northeast Mississippi Daily Journal, The Marshall Project and ProPublica found that many courts were unprepared to comply. Some local court officials were unaware of it. Others suggested that their practice of appointing lawyers for limited purposes would satisfy the rule, even though those attorneys do little beyond attending early court hearings.

State Rep. Nick Bain, a Republican from northeast Mississippi’s Alcorn County, convened the hearing on the weaknesses in the state’s public defense system. He also practices as a defense attorney in about 10 counties and regularly talks with lawyers who work around the state.

“There are wide swaths all over Mississippi where that rule is not being followed,” he said at the hearing.

In one circuit court district that did take action in response to the Supreme Court’s rule, there are signs that appointed defense attorneys are not doing much more than they did before.

In the 1st Circuit Court District, which covers seven counties in northeast Mississippi, chief Circuit Judge Paul Funderburk issued an order in July directing lower court judges in the district on how to meet the new requirements for indigent representation. He said an attorney in the lower court, where defendants first appear, must stay on the case until the defendant is indicted.

State Sen. Daniel Sparks, a Republican from Tishomingo County, represents those defendants in the county’s Justice Court, which hears misdemeanors and some early felony matters. He acknowledged that under the new Supreme Court rule and Funderburk’s order, he remains the attorney for indigent clients until they are indicted.

He said that although he will take calls from defendants and offer advice after they appear in justice court, he believes there is usually little defense work to do before an indictment. “I don’t think it changes my work dramatically,” he said of the Supreme Court’s rule.

He believes problems linked to the dead zone have been exaggerated by reform advocates.

Lee County Justice Court, based in Tupelo, is in the same circuit court district as Tishomingo. In July, the Daily Journal, The Marshall Project and ProPublica reported that the part-time appointed counsel for Lee County Justice Court, Dan Davis, typically did little more than file for a bond reduction for defendants who remained in jail for more than a month. After the new rule became effective in July, Davis told the court he didn’t want the job anymore.

Bill Benson, the administrator for Lee County, said last week that it’s not clear when a replacement will be available. “We’re trying to find someone who will stick with the defendants all the way through like the rule says,” Benson said.

Funderburk said he expects strict adherence to the new indigent defense rule and warned that courts “ignore it at their peril.”

Courts across Mississippi have ignored a broader rule regarding public defense, the Daily Journal, The Marshall Project and ProPublica have found. That rule, part of a 2017 push to standardize how courts across the state operate, requires judges to send to the Supreme Court their policy on how they fulfill their constitutional obligation to provide lawyers for poor criminal defendants. Just one circuit court district, covering three rural counties in southwest Mississippi, has complied.

“The counties need to come up with a plan,” Kitchens told lawmakers. “The justice courts, the circuit courts, the supervisors — all of them need to collaborate and come up with a plan.”

He called on lawmakers to fix problems with public defense that the Mississippi Supreme Court has been unable to remedy by imposing rules on local judges. The state is responsible for ensuring that its public defense system is adequate, he said. “The bottom line is the counties cannot do it alone.”

Bain, whose term ends in December after a primary defeat, said Mississippi must eliminate the dead zone and address other problems, including a lack of full-time public defenders and payment arrangements that encourage lawyers to cut corners.

“I think Mississippi is really stretching the limits of our constitutional obligations,” he said.

by Janet Wilson, The Desert Sun

This story was co-published with The Desert Sun, a former member of the ProPublica Local Reporting Network.

California will soon have more authority to fine oil companies that cause major spills or other hazards. The new law, which will go into effect on Jan. 1, 2024, was authored in response to a Desert Sun and ProPublica probe that found the state agency charged with regulating fossil fuel companies had a spotty enforcement record and had collected no fines in 2020. Gov. Gavin Newsom signed Assembly Bill 631 on Oct. 7.

The law increases penalties to as much as $70,000 per day for continuing violations, and it gives state regulators new abilities to request criminal enforcement.

“This measure ensures California has 21st-century enforcement tools to protect communities from oil operators that violate the law, endanger public health and threaten the environment,” said Assemblymember Gregg Hart, who authored the bill. “AB 631 will strengthen compliance and deter the pattern of treating violations as the cost of doing business. I applaud Gov. Newsom for signing this significant legislation.”

Under the new law, California’s oil regulator, the California Geologic Energy Management Division, or CalGEM, can refer cases to local prosecutors and ask a Superior Court judge to compel operators to correct violations that might threaten public health, safety and the environment. The oil and gas supervisor, who heads CalGEM, can also for the first time recover all response, prosecution and enforcement costs from the petroleum companies.

Critics have long questioned CalGEM’s willingness to exercise its enforcement authority. In 2021, The Desert Sun and ProPublica found that the agency had imposed few fines above $5,000, despite enhanced powers — and had yet to collect a fine above $35,000.

Officials at the agency had vowed to improve enforcement transparency, and CalGEM’s public affairs office said last week that the agency has collected nearly $1.2 million for 24 civil penalty orders in 2022-23. But it did not respond to questions for this article about whether penalties assessed against oil companies from 2018 to 2020 were ever paid, despite promises by officials presented with those findings to improve enforcement transparency.

In an unsigned email, the office also did not answer whether Chevron had paid any or all of a $2.7 million penalty for a 2019 spill, known as a “surface expression” because raw crude shoots straight out of the ground. Chevron had protested the fine at the time, saying there was no safety threat, despite the death of one of its own workers in a similar spill in 2011.

Another spill on a Chevron oil field nearby is also still running five years later, the agency admitted in its email in response to our questions, though it said Chevron’s “mitigation program” has reduced the amount being spilled by 99%. The Desert Sun and ProPublica also found that rather than stopping such oil spills, CalGEM allowed companies to scoop up the spilled oil and process it for sale. The Chevron spill, which was first reported in 2003, and which had already spewed more crude than the Exxon Valdez tanker that ran aground in Alaska, had earned Chevron an estimated $11.6 million from 2016 to 2019.

Chevron in 2021 called the spill a “seep,” and a company spokesperson said, “We take our responsibility to operate safely and in a manner that protects public health, the communities where we operate and the environment very seriously.”

In its email, CalGEM said that the penalties available under the new law are “a powerful motivator for operators to address issues that CalGEM inspectors have identified. Our focus is on ensuring safe, clean operations that safeguard the environment through strong regulation of oil and gas operations.”

Earlier reporting by The Desert Sun and ProPublica found that there was a substantial backlog in enforcement, which the agency said in a budget request was due to understaffing, despite having received funding for more staff.

The agency received funding in 2022-23 for additional staff too.

Environmental groups and a county prosecutor cheered the passage and signing of the bill.

The district attorney for Santa Barbara County, John Savrnoch, said the law would provide his office “with additional tools to help prevent harm to our environment and to hold polluters accountable.”

Linda Krop, chief counsel for the Environmental Defense Center, said, “This legislation is important to protect the public from bearing the cost of illegal activities by oil and gas companies.”

by Marilyn W. Thompson

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Eva Bonilla grows furious when she thinks about how Latino voters are treated by the Republican power structure in Texas. At 74, the small business owner watched the GOP Legislature pass a series of measures like a voter ID law that she felt would make it harder for Latinos to cast ballots or run for public office.

Two years ago, serving as the leader of a Hispanic women’s group in Fort Worth, she decided to strike back. The Republican Legislature had just pushed through new election maps that carved up Latino communities and made it even harder for them to elect candidates of their choice. So Bonilla joined other minority voters as plaintiffs in a federal lawsuit alleging intentional discrimination in the 2021 redistricting plan.

“I wanted to see the right thing done, and this is just not right,” she said.

Then Bonilla waited.

In 2022, an election came and went with districts based on the challenged maps. It has now achieved a dubious distinction: Of the 87 lawsuits filed over the 2021 congressional and legislative redistricting plans nationwide, it has dragged on the longest without having held a trial. As another election looms, a trial date has not even been set.

The reason? Republican leaders asserted their rights to block the most routine give-and-take of lawsuits, resisting handing over documents, providing discovery or submitting to depositions — in effect squashing Bonilla’s efforts to uncover how the 2021 maps were drawn. The lawmakers have done so by the rigorous use of two forms of privilege: the better known attorney-client privilege and what is known as legislative privilege, which allows elected members of state legislatures to deliberate in private.

As the Texas case drags on, legislatures across the country are making new and expansive claims of privilege to keep electoral maps in place and prevent the public from finding out how they made their decisions and why.

Texas lawmakers did not stumble upon these tactics on their own. A national GOP redistricting group helped train Republican lawmakers in Texas on how to approach lawsuits and raised money to pay legal costs. The lawmakers also passed a new law to further protect their deliberations. In addition, they put an outside political operative on the state’s payroll so that the legislative privilege could shield his activities. Finally, they relied on GOP map-drawers who worked for law firms, which allowed lawmakers to assert that the maps were “legal advice.”

Throughout, the Texas lawmakers have contended they did not discriminate against Latino voters.

In Louisiana, North Dakota and elsewhere, Republicans have resisted challenges to their maps by asserting privilege. In Washington, Democrats have done the same. Legal experts say the expanding use of privilege robs plaintiffs of key insights. To succeed in court, plaintiffs in many cases have to show legislators intended to discriminate. Without access, explained Harvard Law School professor Nicholas Stephanopoulos, it becomes “very difficult to prove intent even where it was actually present.”

The concept of legislative privilege is protected under the U.S. Constitution’s speech and debate clause, and 43 states have embedded it in their constitutions. Originally intended to protect legislators from criminal or civil claims for things they said on the floor, it has come to encompass lawmakers’ work-related communications. In theory, affording such protection allowed for frank conversations.

But in the past, people who wanted to scrutinize a legislature’s activities had another, if narrower, way to find out what was going on: They could file open records requests to get access to interactions lawmakers had with outside third parties, such as consultants or political operatives. In Texas and elsewhere, Republicans have succeeded in shielding even these once-public interactions.

Conservative judges in the 5th U.S. Circuit Court of Appeals, which covers several states including Texas, and the 8th Circuit, which covers the Dakotas, have recently sided with state legislatures that have used expanded privilege claims to prevent public review. Recently, Arizona Republicans appealed to the 9th Circuit to shield their deliberations.

Partisan battles have long been a staple of redistricting, which happens every 10 years. But as more states craft their new maps out of public sight, the fights are ending up in drawn-out court cases, with enormous consequences for voters. The lawsuits are taking so long to resolve that six states conducted their 2022 elections under maps that had been ruled illegal by lower courts, according to a recent analysis by Democracy Docket, a progressive website that tracks redistricting cases. They await resolution. Lawsuits challenging maps in seven other states were still awaiting court action when the elections took place.

The Texas GOP undertook its mapmaking effort as the state was undergoing a significant demographic shift. Latinos now slightly outnumber non-Hispanic white people in the state, and they and other minorities account for almost all population growth in the last decade, according to census data. Many of these new residents will likely vote for the Democratic Party. Through aggressive redistricting, however, Republicans have been able to maintain control of the Legislature, all major statewide offices and the state’s congressional delegation. And they grabbed one of the two new seats in Congress gained through the population increases.

“Elections can’t really be unwound. You can’t go back and change the composition of the Texas Legislature from 2022,” said Yurij Rudensky, senior counsel with the Democracy Program at the Brennan Center for Justice, a nonpartisan legal institute. The center represents a separate group of minority plaintiffs who are challenging the state’s maps. The Justice Department has joined the plaintiffs. “So using discriminatory districts cuts to the heart of our democracy.”

To reconstruct how Texas Republicans stalled the legal fight over their redrawn districts, ProPublica used federal court records in six states as well as interviews with experts, voters and former state officials. Combined they provide the fullest account yet of how state lawmakers hobbled the opposition and hidden their activities.

Keith Gaddie, a former bipartisan litigation consultant, said that in his experience, lawmakers keep their methods secret when they are aggressively gaming the process for political gain. “The more egregious the gerrymander, the less information can be made available about the process,” he said. “It’s a nasty, nasty business.”

The Plan

Redistricting in Texas was two years away when leaders of the Virginia-based National Republican Redistricting Trust flew into Houston for a poolside briefing for GOP supporters.

Established in 2017 to counter a similar Democratic Party redistricting operation, the NRRT and its nonprofit affiliate, Fair Lines America, had many Texas ties. Senior leadership included powerful Texan Karl Rove, a former White House official and longtime consultant to Texas governors.

At the closed event in 2019 in a Houston suburb, Texas GOP Chairman James Dickey mingled with party loyalists to discuss the two or three new seats they should get in Congress as the state’s population boomed, according to social media accounts and interviews. A young supporter took selfies with Washington influencers like James “Trey” Trainor, a Texas lawyer whose nomination by President Donald Trump to the Federal Election Commission was being blocked by Democrats because of his criticisms of campaign finance laws. On Instagram, the supporter described it as a helpful session on the “threats and opportunities redistricting presents.”

A photo from a redistricting briefing event hosted for GOP supporters by the National Republican Redistricting Trust (Via Instagram. Redacted by ProPublica.)

The NRRT’s executive director is Adam Kincaid, a former Republican National Committee strategist. Kincaid had become the go-to conservative voice on redistricting within the party. Soon, he would take a hands-on role in drawing Texas’ congressional map. Kincaid declined to comment on his work in Texas “due to ongoing litigation.”

On a party podcast, Kincaid had pushed Republicans to counter what he described as the Democrat’s plan to “sue till it’s blue.” The NRRT distributed talking points asserting that “Democrats are sitting back counting the cash they plan to use on their trial lawyers to fund their strategy of endless litigation,” according to a document secured by the watchdog American Oversight.

In the podcast, Kincaid said the NRRT, which does not have to disclose its donors, would send resources to states facing challenges. Separately, Republican Gov. Greg Abbott of Texas promoted a super PAC that raised money to hire redistricting experts and legal counsel and brought in $500,000 in a single day.

Texas had been mired in voting rights litigation for almost a decade. Groups representing Latino and Black voters had sued after the 2010 census too, making similar allegations to today. Then, a district court judicial panel rejected the state’s map, ruling that large portions of it were unconstitutional racial gerrymanders and ordering maps to be redrawn. Republicans tried to assert legislative privilege over internal emails, but judges rejected the arguments and ordered the documents released.

Emails exposed GOP staffers plotting about how to draw maps to maximize Republican influence in Latino areas, or as one staffer put it: creating “Optimal Hispanic Republican Voting Strength.”

A state lawyer dismissed their plan in Spanish, “No Bueno,” slang for “No Good.” He warned them not to create a paper trail. The court found discriminatory intent.

The state appealed. Ultimately, the Supreme Court in 2018 reversed the lower court and sided with the Republicans in a 5-4 ruling.

Having been embarrassed after 2010, GOP leaders promised transparency this time around. Instead, they took the opposite tack, said Glenn Smith, an author and longtime Houston reporter and Democratic consultant: “Hide as much as possible.”

A leader in the buildup to the 2021 redistricting was Republican state Rep. Phil King, a lawyer who has championed religious liberty and Second Amendment issues. King chaired the House Redistricting Committee and set up a tutorial for members in 2019 featuring Ryan Bangert, a hardliner who was appointed by Republican Attorney General Ken Paxton. It was obvious, said one attendee, that King was “preemptively trying to make sure members covered their tracks.” King’s office did not respond to repeated requests for comment.

In his presentation, Bangert raised what he called “caution flags,” according to a tape of the meeting. While judges had differing interpretations of privilege, it was generally waived if information was shared with outside third parties like lobbyists. “Be very careful,” he said, of tweets or barroom conversations. Bangert now advises a conservative legal group. His spokesperson said that he had no further redistricting involvement.

King was the ideal person to lead the fight. He had star billing in 2019 at two sessions of the American Legislative Exchange Council, a conservative group of state lawmakers, lobbyists and executives that works to draft and spread conservative legislation. King, a national board member of the council, spoke on a panel that delivered a primer on redistricting challenges. Drawing maps favorable to the GOP while preserving minority rights was tricky, party leaders said at the sessions.

GOP strategist Cleta Mitchell, who later took a lead role in Trump’s 2020 election denial effort, worked with the council’s redistricting committee. She moderated King’s panel at the annual convention, telling the audience sarcastically that it would teach them “how to gerrymander.” Slate, which posted leaked audio, said the speakers encouraged “trashing potential evidence.”

The legislators did not want to rely solely on their own discretion, however. In May 2019, a Republican House member from Fort Worth used a routine housekeeping bill to mount a sweeping assault on open records. He slipped a provision into the bill that closed off public access to internal redistricting records. It passed before transparency advocates noticed.

The bill shielded lawmakers’ communications with staff, even interns, as well as outside contractors who might normally be considered third parties. Other legislatures have adopted similar measures. Florida has exempted redistricting documents from its Sunshine Law since 1993, and North Carolina’s Republican-led Legislature recently buried a similar exemption in its 625-page budget bill. The Democratic-led Legislature in Washington is under a court challenge for using a loophole in the state constitution to exclude lawmakers from open records requests related to redistricting.

In addition to passing the law, Texas Republicans assembled legal heavy hitters who, in turn, hired subcontractors who could work behind attorney-client privilege. The House paid more than $1 million to Butler Snow LLP, which hired a Virginia-based demographer to draw maps for the state House of Representatives. (The legal contracts were obtained by American Oversight through an open records request sent before the law was passed.)

Then, for the national congressional seats, 22 GOP members of the Texas Legislature hired Chris Gober, former general counsel for the state Republican Party. It’s not unusual for states or members to retain outside counsel. But what Gober then did was hire the NRRT, an outside party, paying the group a mere $5,000. That secured Kincaid’s map-drawing services, according to Gober’s deposition. He said Kincaid “had the mouse” on the computer drawing congressional maps.

Gober said he is not proficient with redistricting software and hires subcontractors to work under his direction. “That arrangement — and our assertion of attorney-client privilege — is not any different than the other circumstances where our firm hires subcontractors,” he said.

In the Texas case, NRRT legal counsel Jason Torchinsky argued that Kincaid should not have to give a deposition because it would “deter full and honest discussions” between NRRT and partners. After a year of wrangling, a judge ordered Kincaid to answer questions and a deposition is scheduled for early November.

Torchinsky himself has become a key figure in helping Republicans with redistricting. In 2022, he helped devise a new congressional map for the office of Gov. Ron DeSantis. The governor’s plan, which faces a federal lawsuit, reduced the voting power of Black residents. A state judge has since ordered the map redrawn. Torchinsky did not respond to repeated requests for comment.

Working From Inside

While Kincaid focused on drawing a map for the state’s congressional seats, GOP map-drawer Adam Foltz arrived from Wisconsin in 2021 to assist the local effort. By then, Republican state Rep. Todd Hunter had succeeded King as House redistricting chairman. Hunter had a checkered history in redistricting; judges in 2011 had criticized him for drawing maps that undermined Latinos, according to The Texas Tribune. Hunter gave Foltz a $120,000-a-year state job, the Tribune reported, and he enjoyed such high-level access that Democrats noticed his car parked in a special driveway for members. Foltz, whose work also fell under the umbrella of privilege, drew a state salary even after map drawing concluded, and he recently got a $6,000 cost-of-living increase.

Foltz had a similar arrangement in Wisconsin, a state lawyers often cite as a poster child for improper government secrecy and prolonged litigation in its 2010 redistricting cycle. Working from a private law firm, Foltz drew maps that later were thrown out, according to local press reports. Foltz remained in a $50,000-a-year state job during litigation. He later gave testimony that a judicial panel called “almost laughable.” Foltz declined to comment, citing ongoing litigation. Hunter’s office did not respond.

Foltz’s deposition in the Texas case remains sealed by order of the court. He is still asserting legislative privilege to try to prevent giving access to his mapping work to the Justice Department, which joined the plaintiffs who are challenging the maps.

Consequences

The fight carried over to the Texas Senate as well. Republican-led redistricting helped end the Senate tenure of Beverly Powell, a Democrat. She said she knew she had a target on her back from the time she was elected, unseating a Tea Party Republican in 2018.

Powell’s Senate District 10 in Tarrant County, an unpredictable swing district in recent years, was one of several seats Republicans wanted to reclaim to consolidate their power.

She expected a bad result when the Republican chair of the Senate Redistricting Committee, Joan Huffman, secluded herself to draw a new Senate map. When Powell was finally called in to view it, what she saw outraged her. Her district’s minority communities had been split up, diluting their voting strength, while largely white rural counties had been added.

“I know exactly what you are trying to do,” Powell said she told Huffman. She dashed off a warning to other senators that Huffman’s plan was discriminatory.

Senate District 10 Was Transformed Dramatically After Redistricting in 2021

The district previously represented racially diverse communities near Fort Worth, but it now encompasses portions of sprawling rural counties with mostly white constituents.

Source: Redistricting Data Hub via Capitol Data Portal. (Lucas Waldron/ProPublica)

Huffman insisted her map was “race-blind.” Her plan sailed through, with a notable dissent from former redistricting chair Sen. Kel Seliger, a Republican then feuding with some fellow Republicans. The Amarillo senator later testified that Huffman’s map “violated the Voting Rights Act.”

Powell tried unsuccessfully to convince a court to delay the 2022 primary election. She dropped out of the race for reelection, and the powerful House veteran King took her seat.

Powell’s complaint about the district is now part of LULAC v. Abbott, the redistricting case now awaiting trial. Her case stands out because “she has much more information about what happened than any of the rest of us do,” said Nina Perales, vice president of litigation at the Mexican American Legal Defense and Educational Fund.

Republicans have asserted privilege in the Senate mapping fight as well. Overall for all the mapping, their claims cover about two-thirds of the documents the Justice Department wants, including drafts of maps, emails and calendars that reflect protected “thoughts, opinions and mental impressions,” documents show. The legislature has disputed that estimate.

The case stalled for a year while the 5th Circuit weighed privilege in another Texas case. Written by Trump appointee Judge Don R. Willett, its decision defended legislative privilege “even when constitutional rights are at stake.” The 8th Circuit also ruled in June in a North Dakota redistricting case that privilege “protects the functioning of the legislature.”

Judges in the redistricting case are weighing how these decisions impact 22 outstanding motions for documents and depositions.

For her part, Bonilla, the Fort Worth small business owner, says she’s given up hope. “The system has failed,” she said.

Josh Kaplan contributed reporting. Alex Mierjeski and Gabriel Sandoval contributed research.

by Mark Olalde, ProPublica, and Anna V. Smith, High Country News

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

In the 1950s, after quarreling for decades over the Colorado River, Arizona and California turned to the U.S. Supreme Court for a final resolution on the water that both states sought to sustain their postwar booms.

The case, Arizona v. California, also offered Native American tribes a rare opportunity to claim their share of the river. But they were forced to rely on the U.S. Department of Justice for legal representation.

A lawyer named T.F. Neighbors, who was special assistant to the U.S. attorney general, foresaw the likely outcome if the federal government failed to assert tribes’ claims to the river: States would consume the water and block tribes from ever acquiring their full share.

In 1953, as Neighbors helped prepare the department’s legal strategy, he wrote in a memo to the assistant attorney general, “When an economy has grown up premised upon the use of Indian waters, the Indians are confronted with the virtual impossibility of having awarded to them the waters of which they had been illegally deprived.”

As the case dragged on, it became clear the largest tribe in the region, the Navajo Nation, would get no water from the proceedings. A lawyer for the tribe, Norman Littell, wrote then-Attorney General Robert F. Kennedy in 1961, warning of the dire future he saw if that were the outcome. “This grave loss to the tribe will preclude future development of the reservation and otherwise prevent the beneficial development of the reservation intended by the Congress,” Littell wrote.

Both warnings, only recently rediscovered, proved prescient. States successfully opposed most tribes’ attempts to have their water rights recognized through the landmark case, and tribes have spent the decades that followed fighting to get what’s owed to them under a 1908 Supreme Court ruling and long-standing treaties.

The possibility of this outcome was clear to attorneys and officials even at the time, according to thousands of pages of court files, correspondence, agency memos and other contemporary records unearthed and cataloged by University of Virginia history professor Christian McMillen, who shared them with ProPublica and High Country News. While Arizona and California’s fight was covered in the press at the time, the documents, drawn from the National Archives, reveal telling details from the case, including startling similarities in the way states have rebuffed tribes’ attempts to access their water in the ensuing 70 years.

Many of the 30 federally recognized tribes in the Colorado River Basin still have been unable to access water to which they’re entitled. And Arizona for years has taken a uniquely aggressive stance against tribes’ attempts to use their water, a recent ProPublica and High Country News investigation found.

“It’s very much a repeat of the same problems we have today,” Andrew Curley, an assistant professor of geography at the University of Arizona and member of the Navajo Nation, said of the records. Tribes’ ambitions to access water are approached as “this fantastical apocalyptic scenario” that would hurt states’ economies, he said.

Arizona sued California in 1952, asking the Supreme Court to determine how much Colorado River water each state deserved. The records show that, even as the states fought each other in court, Arizona led a coalition of states in jointly lobbying the U.S. attorney general to cease arguing for tribes’ water claims. The attorney general, bowing to the pressure, removed the strongest language in the petition, even as Department of Justice attorneys warned of the consequences. “Politics smothered the rights of the Indians,” one of the attorneys later wrote.

The Supreme Court’s 1964 decree in the case quantified the water rights of the Lower Basin states — California, Arizona and Nevada — and five tribes whose lands are adjacent to the river. While the ruling defended tribes’ right to water, it did little to help them access it. By excluding all other basin tribes from the case, the court missed an opportunity to settle their rights once and for all.

The Navajo Nation — with a reservation spanning Arizona, New Mexico and Utah — was among those left out of the case. “Clearly, Native people up and down the Colorado River were overlooked. We need to get that fixed, and that is exactly what the Navajo Nation is trying to do,” said George Hardeen, a spokesperson for the Navajo Nation.

Today, millions more people rely on a river diminished by a hotter climate. Between 1950 and 2020, Arizona’s population alone grew from about 750,000 to more than 7 million, bringing booming cities and thirsty industries.

Meanwhile, the Navajo Nation is no closer to compelling the federal government to secure its water rights in Arizona. In June, the Supreme Court again ruled against the tribe, in a separate case, Arizona v. Navajo Nation. Justice Neil Gorsuch cited the earlier case in his dissent, arguing the conservative court majority ignored history when it declined to quantify the tribe’s water rights.

McMillen agreed. The federal government “rejected that opportunity” in the 1950s and ’60s to more forcefully assert tribes’ water claims, he said. As a result, “Native people have been trying for the better part of a century now to get answers to these questions and have been thwarted in one way or another that entire time.”

Three Missing Words

As Arizona prepared to take California to court in the early 1950s, the federal government faced a delicate choice. It represented a host of interests along the river that would be affected by the outcome: tribes, dams and reservoirs and national parks. How should it balance their needs?

The Supreme Court had ruled in 1908 that tribes with reservations had an inherent right to water, but neither Congress nor the courts had defined it. The 1922 Colorado River Compact, which first allocated the river’s water, also didn’t settle tribal claims.

In the decades that followed the signing of the compact, the federal government constructed massive projects — including the Hoover, Parker and Imperial dams — to harness the river. Federal policy at the time was generally hostile to tribes, as Congress passed laws eroding the United States’ treaty-based obligations. Over a 15-year period, the country dissolved its relationships with more than 100 tribes, stripping them of land and diminishing their political power. “It was a very threatening time for tribes,” Curley said of what would be known as the Termination Era.

So it was a shock to states when, in November 1953, Attorney General Herbert Brownell Jr. and the Department of Justice moved to intervene in the states’ water fight and aggressively staked a claim on behalf of tribes. Tribal water rights were “prior and superior” to all other water users in the basin, even states, the federal government argued.

Western states were apoplectic.

Arizona Gov. John Howard Pyle quickly called a meeting with Brownell to complain, and Western politicians hurried to Washington, D.C. Under political pressure, the Department of Justice removed the document four days after filing it. When Pyle wrote to thank the attorney general, he requested that federal solicitors work with the state on an amended version. “To have left it as it was would have been calamitous,” Pyle said.

The federal government refiled its petition a month later. It no longer asserted that tribes’ water rights were “prior and superior.”

When details of the states’ meeting with the attorney general emerged in court three years later, Littell, the Navajo Nation’s attorney, berated the Department of Justice for its “equivocating, pussy-footing” defense of tribes’ water rights. “It is rather a shocking situation, and the Attorney General of the United States is responsible for it,” he said during court hearings.

Arizona’s legal representative balked at discussing the meeting in open court, calling it “improper.”

Experts told ProPublica and High Country News that it’s impossible to quantify the impact of the federal government’s failure to fully defend tribes’ water rights. Reservations might have flourished if they’d secured water access that remains elusive today. Or, perhaps basin tribes would have been worse off if they had been given only small amounts of water. Amid the overt racism of that era, the government didn’t consider tribes capable of extensive development.

Jay Weiner, an attorney who represents several tribes’ water claims in Arizona, said the important truth the documents reveal is the federal government’s willingness to bow to states instead of defending tribes. Pulling back from its argument that tribes’ rights are “prior and superior” was but one example.

“It’s not so much the three words,” Weiner said. “It’s really the vigor with which they would have chosen to litigate.”

Because states succeeded in spiking “prior and superior,” they also won an argument over how to account for tribes’ water use. Instead of counting it directly against the flow of the river, before dealing with other users’ needs, it now comes out of states’ allocations. As a result, tribes and states compete for the scarce resource in this adversarial system, most vehemently in Arizona, which must navigate the water claims of 22 federally recognized tribes.

In 1956, W.H. Flanery, the associate solicitor of Indian Affairs, wrote to an Interior Department official that Arizona and California “are the Indians’ enemies and they will be united in their efforts to defeat any superior or prior right which we may seek to establish on behalf of the Indians. They have spared and will continue to spare no expense in their efforts to defeat the claims of the Indians.”

Western States Battle Tribal Water Claims

As arguments in the case continued through the 1950s, an Arizona water agency moved to block a major farming project on the Colorado River Indian Tribes’ reservation until the case was resolved, the newly uncovered documents show. Decades later, the state similarly used unresolved water rights as a bargaining chip, asking tribes to agree not to pursue the main method of expanding their reservations in exchange for settling their water claims.

Highlighting the state’s prevailing sentiment toward tribes back then, a lawyer named J.A. Riggins Jr. addressed the river’s policymakers in 1956 at the Colorado River Water Users Association’s annual conference. He represented the Salt River Project — a nontribal public utility that manages water and electricity for much of Phoenix and nearby farming communities — and issued a warning in a speech titled, “The Indian threat to our water rights.”

“I urge that each of you evaluate your ‘Indian Problem’ (you all have at least one), and start NOW to protect your areas,” Riggins said, according to the text of his remarks that he mailed to the Bureau of Indian Affairs.

Riggins, who on multiple occasions warned of “‘Indian raids’ on western non-Indian water rights,” later lobbied Congress on Arizona’s behalf to authorize a canal to transport Colorado River water to Phoenix and Tucson. He also litigated Salt River Project cases as co-counsel with Jon Kyl, who later served as a U.S. senator. (Kyl, who was an architect of Arizona’s tribal water rights strategy, told ProPublica and High Country News that he wasn’t aware of Riggins’ speech and that his work on tribal water rights was “based on my responsibility to represent all of the people of Arizona to the best of my ability, which, of course, frequently required balancing competing interests.”)

While Arizona led the opposition to tribes’ water claims, other states supported its stance.

“We thought the allegation of prior and superior rights for Indians was erroneous,” said Northcutt Ely, California’s lead lawyer in the proceedings, according to court transcripts. If the attorney general tried to argue that in court, “we were going to meet him head on,” Ely said.

When Arizona drafted a legal agreement to exclude tribes from the case, while promising to protect their undefined rights, other states and the Department of the Interior signed on. It was only rejected in response to pressure from tribes’ attorneys and the Department of Justice.

McMillen, the historian who compiled the documents reviewed by ProPublica and High Country News, said they show Department of Justice staff went the furthest to protect tribal water rights. The agency built novel legal theories, pushed for more funding to hire respected experts and did extensive research. Still, McMillen said, the department found itself “flying the plane and building it at the same time.”

Tribal leaders feared this would result in the federal government arguing a weak case on their behalf. The formation of the Indian Claims Commission — which heard complaints brought by tribes against the government, typically on land dispossession — also meant the federal government had a potential conflict of interest in representing tribes. Basin tribes coordinated a response and asked the court to appoint a special counsel to represent them, but the request was denied.

So too was the Navajo Nation’s later request that it be allowed to represent itself in the case.

Arizona v. Navajo Nation

More than 60 years after Littell made his plea to Kennedy, the Navajo Nation’s water rights in Arizona still haven’t been determined, as he predicted.

The decision to exclude the Navajo Nation from Arizona v. California influenced this summer’s Supreme Court ruling in Arizona v. Navajo Nation, in which the tribe asked the federal government to identify its water rights in Arizona. Despite the U.S. insisting it could adequately represent the Navajo Nation’s water claims in the earlier case, federal attorneys this year argued the U.S. has no enforceable responsibility to protect the tribe’s claims. It was a “complete 180 on the U.S.’ part,” said Michelle Brown-Yazzie, assistant attorney general for the Navajo Nation Department of Justice’s Water Rights Unit and an enrolled member of the tribe.

In both cases, the federal government chose to “abdicate or to otherwise downplay their trust responsibility,” said Joe M. Tenorio, a senior staff attorney at the Native American Rights Fund and a member of the Santo Domingo Pueblo. “The United States took steps to deny tribal intervention in Arizona v. California and doubled down their effort in Arizona vs. Navajo Nation.”

In June, a majority of Supreme Court justices accepted the federal government’s argument that Congress, not the courts, should resolve the Navajo Nation’s lingering water rights. In his dissenting opinion, Gorsuch wrote, “The government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first.” At this point, he added, “the Navajo have tried it all.”

As a result, a third of homes on the Navajo Nation still don’t have access to clean water, which has led to costly water hauling and, according to the Navajo Nation, has increased tribal members’ risk of infection during the COVID-19 pandemic.

Eight tribal nations have yet to reach any agreement over how much water they’re owed in Arizona. The state’s new Democratic governor has pledged to address unresolved tribal water rights, and the Navajo Nation and state are restarting negotiations this month. But tribes and their representatives wonder if the state will bring a new approach.

“It’s not clear to me Arizona’s changed a whole lot since the 1950s,” Weiner, the lawyer, said.

by Eli Hager

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for Dispatches, a newsletter that spotlights wrongdoing around the country, to receive our stories in your inbox every week. This story was co-published with The New Yorker.

This story is exempt from our Creative Commons license until Dec. 22, 2023.

Alicia Johansen spent her childhood moving with her drug-addicted mom from one place to the next, trying to brace herself for the moment when the water and the electricity would get cut off. So at 22, when she had a chance to run Dolittle’s pool hall in the ranching town of Akron, Colorado, she was intent on making some money. She kept the bar open deep into the night, after the older guys who bet on horse races departed, and the truckers and the younger crowd, with the meth, drifted in. Meth, she soon discovered, helped her work longer hours.

An occasional customer was Fred Thornton, a former high school baseball star in his early 30s. Fred was sometimes a roofer and at other times unemployed and homeless. They began dating casually and using together, and he told her of his own complicated childhood: placed in foster care as a toddler, after allegations of neglect, and later adopted.

Alicia’s period was irregular because of the meth, which also dimmed her self-awareness. She was six months along before she realized that she was pregnant; a month after that, she woke up in pain. She had preeclampsia, which caused dangerously high blood pressure, and needed an immediate C-section. She was airlifted to a hospital in Denver, a hundred miles away. Her and Fred’s son, Carter James Thornton, was born on Aug. 6, 2019 — two and a half months premature, 2.5 pounds in weight, and, according to his lab work, exposed to meth and to THC.

That first week at the hospital, Alicia hovered over Carter, who was curled beneath a web of tubes and wires, before going home to get baby things. The third week, she and Fred visited their son and held him skin-to-skin. The fourth week, back in Akron, they faltered: They had no gas money for a return to the big city; they were bickering; they were high. On the fifth week, when Carter was stable enough to leave the neonatal intensive care unit, Alicia returned, but foster parents from Akron were the ones who took him home.

Carter’s drug exposure and his parents’ weekslong absence had triggered a call to child protective services and then a neglect case against Alicia and Fred in the juvenile court of Washington County, where they lived. To get their son back, the judge informed them, they’d need to take a series of steps laid out by the county’s human services department: pass random urinalysis drug tests, with missed ones considered positives; secure stable housing and employment; and make it to regular supervised visits with Carter. During the next three months, as the department steadily recorded Alicia and Fred’s positive drug tests and missed visits, none of their excuses were entertained, a hard line for which they would later be grateful. In December, they decided that if they wanted to raise their child together — and they did — they would have to get sober for good.

By the summer of 2020, Alicia and Fred had met every one of the judge’s requirements, and then some. They’d tested negative on more than 30 consecutive drug screens between them, including hair follicle tests that indicated how long they’d been clean. They had continued to visit Carter weekly through the first months of the pandemic, when a “visit” meant trying to entertain an infant over Zoom. Fred took a job as a maintenance man for the county, installing plumbing in low-income housing and mowing the fairgrounds. Alicia left bar work and began delivering mail for the U.S. Postal Service and working the deli counter at a grocery store on her days off. They spent much of what they earned replacing carpets, repainting walls and fogging air ducts to remove any lingering trace of meth from their one-story house, which, before Carter’s arrival, at times lacked water and electricity. They had completed parenting lessons and were in therapy, getting support for their sobriety and learning how to be better partners to each other. In other words, the foster care system, whose goal under federal law is to be temporary, in service of a family reuniting, seemed to be working.

Alicia and Fred (Rachel Woolf for ProPublica)

As the couple hit six months sober, the county’s Department of Human Services added, and the judge approved, one more element to their treatment plan: an expert evaluation of how well they interacted with Carter. If they cleared this last hurdle, Alicia and Fred understood, the system would let them reclaim their son. Alicia worried in advance about whether she could be silly with her baby while under scrutiny and with everything to lose. She would have been more anxious had she known the truth: that she and Fred weren’t just demonstrating their fitness to care for Carter — they were competing for him. His foster parents, hoping to adopt him, had just weeks earlier embraced an increasingly popular legal strategy, known as foster parent intervening, that significantly improved their odds of winning the child.

It has become harder and harder to adopt a child, especially an infant, in the United States. Adoptions from abroad plummeted from 23,000 in 2004 to 1,500 last year, largely owing to stricter policies in Asia and elsewhere, and to a 2008 Hague Convention treaty designed to encourage adoptions within the country of origin and to reduce child trafficking. Domestically, as the stigma of single motherhood continues to wane, fewer young moms are voluntarily giving up their babies, and private adoption has, as a result, turned into an expensive waiting game. Fostering to adopt is now Plan C, but it, too, can be a long process, because the law requires that nearly all birth parents be given a chance before their rights are terminated. Intervening has emerged as a way for aspiring adopters to move things along and have more of a say in whether the birth family should be reunified.

Intervenors can file motions, enter evidence and call and cross-examine witnesses to argue that a child would be better off staying with them permanently, even if the birth parents — or other family members, such as grandparents — have fulfilled all their legal obligations to provide the child with a safe home. When Carter’s foster parents intervened in the hope of keeping him, they turned to the firm of Tim Eirich, a Denver adoption attorney who charges as much as $400 an hour and has almost single-handedly systematized intervention in Colorado.

A video of the two-hour parenting evaluation that would help determine who would raise Carter shows Alicia and Fred sitting on the floor of a utilitarian playroom in a government building, smiling, and their son, now almost 1, grabbing Fred’s baseball cap and chewing on it. Alicia feeds him a bit of red bell pepper, explaining to the evaluator, who sits in a chair just off camera, that an occupational therapist suggested that they introduce Carter to new food textures. Both parents cheer as Carter scootches around, and, intermittently, they answer questions that the evaluator poses in a warm Texas accent. What do they think a successful transition from foster care would look like? How would they characterize Carter’s personality? (“Curious,” “Easy to soothe.”) At one point, Fred confides that the playroom has sparked a memory of his birth mother in a similar space, her black hair down to her waist, shortly before she was erased from his life.

After the visit, the evaluator, a social worker named Diane Baird, made a report to the county. Alicia and Fred were kind to Carter, she noted, and she praised them for remaining sober and being “earnest in their regret” about the mistakes they had made. But she criticized them for repeatedly encouraging Carter to crawl, which he wasn’t quite ready to do, and for giving him the bell pepper — actions, Baird said, that betrayed a lack of understanding that he had developmental delays. “Neither parent has the kind of relationship with Carter that will help him feel safe in a new situation,” she wrote.

When Alicia read the report, she was bewildered. Did Baird not understand how hard it is to bond with a baby you’ve been allowed to see for only a few hours a week, while masked, or in 15-minute stints on Zoom? And why was Carter’s eye contact with her, which Baird had specifically praised during the visit, now described as lacking “affective involvement”? But she and Fred decided to focus on the practical advice that Baird had given them, including not to fall silent around Carter and to face his developmental delays instead of avoiding them.

After a follow-up evaluation a month later, Baird reported that Alicia’s knowledge of child development was deepening and that she and Fred had engaged in imaginative play, as when Fred aced a feeding game by using a toy dinosaur. Nonetheless, Baird opposed Carter’s being returned to Alicia and Fred on the grounds that the foster parent intervenors had reported that he pitched fits and struggled to eat and sleep after seeing them.

Although hired as a consultant by Washington County in this case, Baird had a long-standing independent agenda: helping foster parents across Colorado succeed in intervening and permanently claiming the children they care for. Often working hand in hand with Tim Eirich, she has been called as an expert in, by her count, hundreds of child welfare cases, and she sometimes evaluates visits between birth families and children without having met them. Baird would not say how many foster parent intervenor cases she has participated in, but she can recall only a single instance in which she concluded that the intervenors should not keep the child. Thinking that particular couple would be weak adoptive parents, she told me, she simply filed no report.

Diane Baird in her office in Wheat Ridge, Colorado (Trent Davis Bailey for ProPublica)

In front of the judge in Carter’s case, Baird elaborated on the danger of returning Carter to Alicia and Fred, saying that their visits with him were threatening his primary attachment and causing “a biologic hyperarousal that not only burns calories but self-perpetuates” — a state that becomes worrisome when a child spends “25% to 57% of their time, or whatever,” in it. Rupturing a primary attachment could ultimately cause “sociopathy” in a child, she said.

In February 2021, relying heavily on this expert view, the county moved to permanently terminate Alicia and Fred’s parental rights. All that remained was a hearing in which the judge would make a decision, and, as it approached, the couple felt outmatched. Akron being a small town, they knew something about the people who’d been fostering Carter. Lain Bernhardt, who came from a prominent local ranching family, had once run for mayor. He and his wife, J’Lyn, were teachers, he in the public school system, she at a Head Start program run by a Methodist church.

They lived on a farm, and Alicia could concede that Carter, now a year and a half old, might have a pretty decent life there. But she also knew that, even at the lowest points of her own childhood, she hadn’t wanted to lose her mom forever, as Fred had done. Fred, a Mexican American who had been adopted by a white family, worried that Carter would grow up as tormented about his cultural identity as Fred had been, and as uncertain about whether his birth family fought to keep him. Although he and Alicia sensed that some fix might be in, they promised each other not to give up. Even if they lost, they reasoned, Carter might one day know that he’d been wanted.

In the 1950s, the British psychoanalyst John Bowlby posited that being separated from a maternal figure in the first years of life warps a child’s future ability to form close relationships. He and other psychologists later added nuance to what became known as “attachment theory,” taking into account new research, such as a longitudinal study of children who’d spent their early years in residential facilities, which indicated that some children had more resiliency than Bowlby had initially grasped. In the ensuing decades, the idea that breaking off a primary attachment would do lifelong damage became influential in child-development spheres and eventually infiltrated popular culture. Early in this century, several adoption attorneys “hit on this thing of attachment” and saw its utility, Dale Dove, who co-chairs the Academy of Adoption & Assisted Reproduction Attorneys’ foster care committee, told me. With the supply of adoptable babies dropping, foster children were becoming a “hot commodity,” he said, and he and his colleagues (among them Tim Eirich’s law partner Seth Grob) realized that attachment experts could be called into court to argue that foster children needed to remain with their foster parents in order to avoid a severed bond.

In actuality, young children may endure a range of caregiver transitions, including being removed from birth parents and sent to foster care in the first place, or going through a private adoption or a divorce. When the American Academy of Pediatrics reviewed recent research, it concluded that kids who grow up with their birth family or kin are less likely than those who are adopted or are raised in non-kinship foster care to experience long-term separation trauma, behavioral and mental health problems, and questions of identity. The Trump and Biden administrations have both pressed states to keep a larger percentage of kids with birth parents or kin. Intervention, a state-level counter-trend, is supported by foster parents’ rights groups and advocates at national conservative organizations.

Naomi Schaefer Riley, an American Enterprise Institute senior fellow, has criticized the fact that some states extend the year and a half that federal guidelines give birth parents to rehabilitate themselves. Intervention, she says, helps stop that foster care drift, reduces cavalier reunifications in which children taken away after abuse and neglect are returned to the same circumstances, and clears the path to adoption.

Since 2018, South Carolina’s courts and lawmakers have affirmed the right of any state resident to file to adopt any foster child, as well as the right of foster parents to intervene. In 2020, Kentucky amended its law to let foster parents intervene as legal parties in involuntary terminations of birth parents’ rights. And this year Florida passed a law saying that if birth parents move to have their child adopted, including by a biological family member, long-term foster parents can intervene to contest that outcome. Kathryn Fort, the director of the Indian Law Clinic at Michigan State University, told me that her practice has faced three sets of intervenors this year, all of them non-Native couples seeking to adopt a Native child.

Colorado has been a pioneering state for intervention thanks mostly to Eirich, the lawyer whose firm represented Carter’s foster parents. In 2013, he argued and won a state Supreme Court case that ended almost all limitations on the practice, and in the following five years there was a threefold increase in intervenor cases statewide, according to data from the Colorado Office of Administrative Courts. By 2022, at least 2,500 cases had been filed. A tenth of the state’s child welfare cases now have an intervenor. And with an intervenor, court data indicates, the chance that the birth parents’ rights will be terminated surges from 17% to 43%. Bruce Boyer, Eirich’s former professor at the Loyola University Chicago School of Law, told me that he has become concerned about intervenors “bullying their way” into proceedings in which the termination of parental rights, a grave state power, is on the line.

Tim Eirich listens to testimony during a legislative hearing concerning foster care interventions at the Colorado Capitol in Denver in March. (Rachel Woolf for ProPublica)

Eirich’s firm represents nine private adoption agencies across Colorado, and he leads intervenor training sessions for judges and foster parents. He told me that the idea that he helps adopters-to-be thwart the goal of birth-family reunifications is “absolute bullshit.” Most of his clients intervene, he said, primarily in order to help the judge make an informed placement decision: one that considers the child as an individual, instead of prioritizing generalized arguments about biological ties or race. “Colorado empowers people who care about maltreated children to be part of the process,” he says.

He routinely relies on Diane Baird, whom his clients sometimes hire directly, or on an attachment expert whom she has trained. Baird told me that she decided to work so closely with Eirich because “he knew how to use me most effectively.” They both often argue that birth family visits are causing a child damaging emotional swings due to attachment issues. “A healthy attachment trumps biology in the first three years of life, period,” Baird told me. Later, she emailed me something that one of her colleagues likes to say about biological families: “Blood is thicker than water but it’s also a better carrier of disease,” to which Baird added, “LOL.”

It’s not acceptable in most family courts to explicitly argue that, if you have more material advantages to provide a child, you should get to adopt him or her. Outside the courtroom, though, intervenors are sometimes less discreet. During a 2021 case meeting, according to a specialist who took notes, a foster parent and Eirich client said, of the prospect of reuniting a baby boy with his biological family, “He’s used to being raised by a maternal figure who stays home. We have 1.5 acres for him to run around, and they have an apartment.” Another foster parent and Eirich client told me that reuniting a baby girl with her birth mother would mean transitioning her from a “personalized nanny” to a “day care center with, you know, 50 kids running around, and sleeping on a little cot.”

When Carter was ready to leave the hospital in September 2019, J’Lyn and Lain Bernhardt walked into his room in the NICU and found Alicia sitting there, seemingly disengaged from her stunningly small child. Alicia jumped up and thanked them for taking in Carter. As they all watched child safety videos, the Bernhardts did their best to be polite, but they later told me how effortful that had been. “You choose drugs over your child,” Lain said, “and my opinion about you is not going to be positive.”

The Bernhardts care deeply about children. J’Lyn has focused her career on early-childhood education, and Lain, in his mayoral campaign, advocated for after-school programs for older kids. But since they got married as 23-year-olds in 2015, they haven’t had biological children of their own. Realizing that, as they put it, there were plenty of children in this country who needed help, they registered with the county as what is called a foster-to-adopt family, stating their willingness to adopt but agreeing that birth parents must first be given a chance to follow their court-ordered treatment plan. Before Carter, the Bernhardts fostered eight kids, one or two at a time, a draining public service for which they received a monthly payment of around a thousand dollars. In 2018, they adopted one of the children, an 11-year-old boy. But Carter was their first newborn.

He was so underweight that he needed a special high-calorie formula, which he struggled to consume. “It takes over every part of your body that this is an innocent child, and he is here by himself,” J’Lyn told me. Lain said, “People tell you, ‘It’s foster care … it’s temporary.’” But nothing about the situation felt temporary, he said.

J’Lyn and Lain Bernhardt in Carter’s room in their home in Otis, Colorado, in March. (Rachel Woolf for ProPublica)

Within days of learning that Carter, at the hospital, needed foster parents, J’Lyn came to work full of emotion, saying that she needed time off because she was getting a baby who’d be fast-tracked for adoption, according to her supervisor at Head Start. (J’Lyn disputes this account.) Before long, she and Lain bonded with Carter; the first time he sat up and the first time he broke into giggles, they cried.

The job of foster parents is inherently difficult on an emotional level. They are told that they’re needed because a child’s parents have severe and potentially dangerous problems, but also that they should support the ultimate goal of returning the child to those same parents. They’re expected to simultaneously love the child and accept that their bond with the child may be broken. And although they may spend all day, every day, with the child, a caseworker usually has more influence than they do in determining what’s in the child’s best interests. Intervening makes some foster parents — whether they went into the process looking to adopt or arrived at that desire over time — feel less helpless.

When the Bernhardts started Googling intervention, they quickly found Eirich’s website and many effusive reviews from foster families who had won contested adoptions with his help. “He’s the one who fought for us to have this right,” Lain told me. But Eirich was too busy to represent them, so they hired his associate Kerry Simpson, with whom Eirich discussed the case as it went along. The Bernhardts, in their motion to intervene, argued that Carter might develop an attachment disorder if separated from them and said that they were concerned about whether his developmental needs would be handled appropriately if there were a change in caregivers. “Cognitive disability and/or autism is likely,” the filing said.

As intervenors, J’Lyn and Lain now had a courtroom standing equal to that of Alicia and Fred, and were allowed to sit in the jury box at hearings.They also began getting visits from Baird, who gave them advice about how to calm Carter when he was stressed. (She would eventually suggest a warm bubble bath, along with setting glow sticks afloat in the tub.) They didn’t need to pay for Baird’s assistance, because, in this instance, she was working for the county. That was lucky; by 2021, payments to Eirich’s firm were consuming their savings.

The problem was that Alicia and Fred would not give up. With the motion to terminate their parental rights hanging over their heads, they hadn’t had a single relapse and were arriving at visits “relentlessly on time,” as one case evaluation put it. Carter was excited by the interesting homemade toys and sensory materials that Alicia brought for him to play with, another report, by a parenting coach, said. (Shaving cream was a particular delight.) The report noted that Carter turned to Fred for reassurance when he struggled, and that Fred could reliably make his son laugh.

Another judge, recognizing Fred’s transformation, had recently granted him full custody of his other son, Robert, who was 12 years old. But by now, Fred and Alicia understood why Carter’s case was different. A social worker had explained that Eirich and Baird “went around the state together” arguing for the termination of birth parents’ rights, Alicia told me. And she guessed that the county backed the Bernhardts too because they’d come forward to foster so many children.

In October 2021, Alicia and Fred felt a little less pessimistic after the county dropped its motion to terminate their rights, admitting in a court filing that it lacked convincing evidence against them. However, Carter remained in foster care, with no transition home planned. This gave his foster parents more time to make their central argument for keeping him: that after visits with Alicia and Fred Carter would still unravel — slapping and kicking, crying and banging his head against the wall, alternating between sleeplessness and nightmares about monsters.

Arguments involving what’s called “post-visit dysregulation” are extremely common in intervenor cases, Allison Green, the legal director of the National Association of Counsel for Children, told me. Although the fits are often interpreted with great authority, she said, “in reality, children may be dysregulated for any number of reasons — perhaps they miss their parent, feel confused, or are simply behaving as toddlers do.” Green used to employ the dysregulation claim in her own cases, she said. She now regrets it.

Hearing of Carter’s distress, Alicia felt “the most unspeakable feeling of defeat,” she told me. “You can’t help your baby, but you’re also being blamed somehow from afar.”

In many intervenor cases, foster parents win after their lawyers undermine the claims of other biological relatives, beyond the parents, who want to keep the child in the family. In 2020, Cynthia Cooley, a home health aide on Long Island, received confirmation after a paternity test that she had a 6-month-old grandson in foster care in Weld County, Colorado. At first, she was unsure if she could be the baby’s caregiver or if another relative should do it. And she was hesitant to elbow in on the rights of her son, the baby’s father, who had recently been released from jail. But before her grandchild turned 1, Cooley, who is Black, decided to uproot her life to take custody of him. She moved to suburban Atlanta to be near extended family and installed a baby gate at the top of the stairs. She completed foster parenting and first-aid classes and took a job operating machinery at a warehouse. Because she knew the long history of Black-family separation in America, from the forced removal of enslaved kin to the ongoing problem of race bias in child welfare, she was jarred when a new word appeared in case documents. “I said, ‘I know what “intervening” means. … The word “intervene” means to interfere,’” she told me.

Cynthia Cooley uprooted her life to pursue custody of her grandson. (Alyssa Pointer for ProPublica)

Eirich was representing the foster parent intervenors who had custody of Cooley’s grandson. Late last year, in a closing argument, he said that Cooley had taken too long to raise her hand. He also cited a report filed by Baird, who’d never met Cooley, which said that her visits with her grandson, for which she was flying in from Atlanta, were disrupting the boy’s attachment. The intervenors should keep him permanently, Baird concluded.

The Weld County Department of Human Services strongly objected. In a filing, its counsel wrote, “The obligation of the Department is to try and place with family when it is safe, appropriate and available,” and, “Grandmother Cynthia Cooley is absolutely that person.” But, as Eirich underlined to me, though parents have a constitutional right to their child until such right is terminated, grandparents and other relatives have only a preference under state laws. The judge ruled in favor of Eirich’s clients, a social worker and a real estate agent. “Court found [Baird’s] testimony credible. She has significant experience,” the judge said, adding approvingly that Baird’s analysis had “focused on primacy of attachment over cultural considerations.”

Eirich’s clients, who are white, emphasized to me that they’ve fostered multiple children and hadn’t been looking to adopt; they were willing to do so in this case to give the boy a sense of permanency. Because they value biological bonds, they said, they’ve tried to keep Cooley involved. (“The best of both worlds,” Eirich likes to say in court.) They offered Cooley a post-adoption agreement that would legally require them to stay in touch with her. Cooley told me she doesn’t want a contract. She wants her grandson.

Kathy Hammond, a nurse practitioner in rural Farmington, Missouri, was also told that she had waited too long to step up for her grandson. Yet Hammond had repeatedly called the Colorado Department of Human Services to ask about the boy when he was 2 months old in 2017. When he was 3 and 4 months old, she pressed his caseworker in emails, asking for custody. “What is the process at this point?” she wrote. “Will I hear from you or should I expect to hear from someone else? Is there anything else I can/should be doing to be prepared for baby and court? Should I plan a visit to Colorado to meet [the child] or to meet persons involved?” Then she waited on paperwork for a safety inspection of her home, which didn’t happen until well into 2018. The delay was somehow tied to the baby’s Social Security card.

After more confusion, Hammond started driving 14 hours each way for court hearings for her grandchild, who was now a year old. She changed for court in the car, then drove all the way back for work. But, she said, she soon learned something that made her heartsick: “The foster family has the best attorney in Denver” — Eirich.

Eirich argued that the boy’s developmental and medical issues — including tremors and other abnormal movements — prevented a transition of caregivers, even to a veteran nurse practitioner. Yet his client, a foster mother named Jody Britton, had already had the tremors checked out by multiple doctors. After an EEG, a neurologist at the University of Colorado Anschutz Medical Campus reported, “Foster mom still feels that there is something wrong with him but his exam is normal today.”

Britton, an evangelical Christian who lives in the Denver suburbs with her husband, a pastor, and has adopted children from Africa, ultimately won permanent custody. She is now a leading advocate for the rights of intervenors like her in Colorado, through a group called Foster Source. As she points out, under a state statute, she was designated as a kinship foster placement because she was close with the birth mother’s sister. She says that the blame lies with the county for failing to inform her for a year that Hammond was seeking custody. By then, she said, she understood the boy’s medical needs better than another caretaker would. “We intervene so we can sleep at night,” she told me. “We need to know we are doing everything we can.”

Jody Britton at the headquarters of Foster Source in Westminster, Colorado (Trent Davis Bailey for ProPublica)

Children with developmental disorders are, unsurprisingly, overrepresented in foster care. Some were exposed to drugs or alcohol in utero, some were neglected after coming into the world. Separation from a birth parent can itself be traumatic, and so can being placed with one foster family after another, as many children are. Sincere concern often drives foster parents to have kids in their care tested for social, emotional and learning delays and to enroll them in speech, physical and other therapies.

But Paul Spragg, a Colorado forensic psychologist with 30 years’ experience with child welfare cases, told me that even if there is no formal diagnosis, “intervenors with a view toward adopting a kid have an interest in reporting issues that ultimately make adoption by them more likely.” In court, a barrage of tests and therapies often serves the twinned arguments that it’s too sensitive a moment to transition the child back to the birth family and that the birth family may be ill prepared to care for the child.

The Bernhardts reported that Carter ate things that he wasn’t supposed to, like fuzz from his diaper. In response to this and other developmental concerns raised by the Bernhardts, Carter’s caseworker and experts who had been hired to examine him, the county had him tested in 2021 for autism spectrum disorder, which the Bernhardts had suggested he had when they first intervened. A clinical psychologist found that he had normal social functioning for his age but that the fuzz-eating could be attributed to pica, a condition marked by eating nonfood items, and that other signs of distress might be caused by “upbringing away from parents.” Officials also had Carter’s brain “mapped” by a local therapist using the “neurosequential model of therapeutics” originally developed by the psychiatrist Bruce Perry; the results proved too murky to be used by either side. Janina Fariñas, another clinical psychologist who evaluated him for the county, told me, “There was almost a need for Carter to not be OK.”

In July 2022, I watched a hearing in Carter’s case held by videoconference. Alicia and Fred, sitting cross-legged on their living room floor, were frustrated that they couldn’t hear, let alone counter, much of what the county’s lawyer was saying about them. The judge, for his part, lamented all the medical tests. “We’re going to turn this kid into a lab rat,” he said. He then told the Bernhardts’ lawyer, the Eirich associate, “Sometimes I think your clients are being a little bit coy. They need to flat out say what they want. Are they foster parents who just want what’s best for this child, or do they want to adopt?”

Despite his palpable skepticism, the judge did little but say that he would await responses to a motion and schedule another hearing. Days later, the county again filed for the termination of Alicia and Fred’s parental rights. Although the couple had complied with their treatment plans, the filing concluded, their son had been in foster care for three years and needed “the permanence that only adoption can afford him.” Intervening is usually “buttoned up relatively quickly,” Lain told me, especially in cases involving very young children. So he and J’Lyn were pleased by the new termination filing, and to learn that the county had again brought in an expert — Diane Baird — to assess Alicia and Fred’s parenting of Carter. Before long, following sessions that Alicia and Fred thought had gone well, Baird was reporting that Carter’s eyes were “dark and bottomless” and that he had a “tic-like blink.”

Whenever Carter ran up to Fred to start a game of tag, saying, “Try and get me,” Fred froze, worried that if he gave chase a reference to Carter fleeing him in fear might end up in a report. “If Carter laughed, it was the wrong type of laugh,” he told me. “If Carter was running, he’d be ‘hyperaroused.’” Fred had by now come to think of Baird as some wicked Jedi, converting his positive interactions with Carter into dark ones. Alicia shushed him when he talked like that in public. “If you do everything right and you tell the truth,” she told him, “at some point, you’re gonna come out on top.” He thought she was being naive.

Baird has long called her technique for evaluating parent-child interactions the “Kempe protocol for interactional evaluation,” after the prestigious Kempe Center, the child welfare branch of the University of Colorado medical school where she worked, on and off, from the mid-’80s until 2017. Early on, she helped a colleague develop the method, which extrapolated sweeping conclusions about how parents and children relate from subtle observations of eye contact and body language. Last year, the Kempe Center’s director asked Baird in an email to stop using the Kempe name to describe her protocol and to make clear on her CV that she no longer works there.

Patrice Harris, a child and adolescent psychiatrist and a past president of the American Medical Association, says that although children placed in a series of foster homes may have lifelong trust issues, a child who has had one good experience with a foster family often benefits from it. “That secure placement can enhance their ability to attach again,” she told me. The child’s brain has been wired that adults can be trusted.

Carter started preschool in the autumn of 2022, with the trial to decide his fate set for just before Christmas. As the date approached, Alicia and Fred, frantic, latched onto an idea that someone they’d met through parenting class had suggested: What if they could get taxpayers to care about all the money the government had spent to keep them from their child?

They filed a Colorado Open Records Act request and soon received dozens of invoices. In all, tiny, unaffluent Washington County had spent more than $310,000 on Carter’s case: on his brain mapping and medical exams, on the many expert evaluations, on Baird’s travel to and from Denver, on payments to the Bernhardts, and so on. In December, the director of the Department of Human Services, Grant Smith, resigned. Two days later, a letter from an attorney representing Washington County revealed that an internal investigation had found improprieties in the handling of Carter’s case. (The investigative report is under a gag order, and neither Smith nor the new director would elaborate on the resignation.) The trial was canceled, and in February, the judge asked for an explanation of what, exactly, was still unfit about Alicia and Fred as parents. The following day, the county finally dropped its case.

“It’s over,” Alicia’s lawyer told her when she answered the phone. Alicia gestured wildly at Fred to turn down the TV. The lawyer went on, “After his next visit … you don’t have to give him back.”

A calendar marking Carter’s arrival date at Alicia and Fred’s home (Rachel Woolf for ProPublica)

In March, Alicia’s fellow mail carriers threw a party at the Akron senior center with cake and presents. It was a baby shower for a 3.5-year-old boy. The following month, Alicia joined other birth families in testifying in favor of new state legislation that would give biological relatives more priority in foster care cases and prevent foster parents from intervening until they had cared for a child for a year. In August, that law went into effect.

As Colorado grapples with how prevalent foster parent intervention has become, other states are taking the intervenor concept further. At least 15 states, from New York to Tennessee to Arizona, now allow foster parents to directly file to terminate a biological parent’s rights, as if they were prosecutors.

In Indiana, the adoption attorney Grant Kirsh handles, by his count, around 500 adoptions of foster children every year, and he educates foster parents about the process on his YouTube channel. Kirsh tells them that, should the state’s child services agency move to return a child in their care to the child’s birth family, they can simply serve a notice of adoption, which the birth family will have only 15 days to contest. If there is no response in that time frame, the birth family loses the right to challenge the adoption.

“It’s nuts,” Andrea Marsh, a family court lawyer in Indianapolis, said, calling the process “similar to intervention, but the nuclear option.” One of her recent clients, a birth mother in Indianapolis, was trying to follow her court-ordered treatment plan when the suburban foster parents who were caring for her child filed for adoption in their home county. (Court-shopping is a strategy that Indiana adoption attorneys use to circumvent a court that is still trying to reunify the birth family.) The mother failed to reply by the deadline and, when the adoption of her child was finalized, neither she nor the local child services office could do anything about it.

First image: Fred unloads Carter’s backpack after school. Second image: Alicia and Carter run outside near their home. (Rachel Woolf for ProPublica) First image: Alicia and Carter stretch after his nap. Second image: Carter looks out the window of their home. (Rachel Woolf for ProPublica)

In his first weeks living with Alicia and Fred, Carter would ask where J’Lyn was and for certain toys he used to have, like “the ones with the buttons.” When he grew quiet and seemed sad, Alicia found that what often helped was a visit to a playground, the one with the red slides. By late spring, he had stopped getting quiet. “Can we tell Dad I slept so good?” he asked his mom with excitement one morning, and Alicia wondered if he knew or sensed that his sleep problems had been debated for years.

According to an assessment administered at Carter’s preschool, he is on target developmentally and even “potentially gifted.” When I mentioned to Baird that there is little sign of the attachment trauma she predicted, she said this just demonstrates that Carter knows he has to “hero on.”

Carter and Fred play while Alicia looks on. (Rachel Woolf for ProPublica)

Alicia and Fred kept Carter enrolled at the Head Start program where both Bernhardts now worked and where Carter could run up and give them hugs. After school one day, Alicia said to herself, “Screw it, I’ll go talk to her.” She walked into J’Lyn’s classroom and said that she hoped J’Lyn would remain in Carter’s life so that, as Alicia put it to me, “these two halves of his life are no longer halves.” Both women later told me that they had bonded over the fact that neither much liked the other’s man.

Shortly afterward, however, the Bernhardts moved to Texas — in part to avoid seeing Carter every day. One afternoon, looking out at the large backyard of their new home just outside Abilene, the couple told me that they’d paid around $32,000 to Eirich’s firm. “We didn’t do any of this for any reason other than to make sure that Carter has the best life,” J’Lyn told me later. “He deserves that.”

Just before visiting the Bernhardts, I’d been with Alicia and Fred in a home, once a meth den, that was brimming with kids’ books, drawings and water guns. Child-size cowboy boots sat by the front door, and Carter was out playing with cousins he once didn’t know he had. At the kitchen table, Alicia told me that the Bernhardts “can be victims, too.” Once the system “put this idea in their heads that adoption could be an achievable goal for them, it damaged our family, and my son, and the foster parents’ family.” She paused, thinking over all that J’Lyn and Lain had gone through. “God, how heartbreaking would that be.”

Mollie Simon and Mariam Elba contributed research.

by Daniel Golden

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A sign that reads “Somewhere Worth Seeing” welcomes travelers to Ware, a faded mill town surrounded by the hills and steeples of western Massachusetts. But these days, hardly any news outlets find Ware worth a visit, even as its leaders wrangle over issues vital to its future.

Inside the brick, fortress-like Town Hall on a humid summer evening, Town Manager Stuart Beckley informed the five members of the Selectboard, Ware’s council, of an important proposal. A company was offering to buy Ware’s water and sewer services, which need tens of millions of dollars in upgrades. That’s a consequential choice for a town of 10,000 with an annual budget of $36 million. A sale would provide an infusion of $9.7 million. But private utilities often increase rates, raising the prospect that Ware’s many poor and elderly residents might face onerous bills down the road.

The Selectboard didn’t reach a consensus that night. Instead, one of the members berated Beckley for moving ahead with privatizing even though the position of town planner had been vacant since March. “We’ve been through four of them ... in less than six years,” Keith Kruckas said. “So we’re not going to blame it on COVID. We’re not going to blame it on other towns paying more money. We’re going to blame it on poor management.”

From there, the discussion descended into bickering between Kruckas and Beckley. “You’ve been harping all night, point after point after point,” Beckley said. “So is there anything that I do that you like?”

I thought Ware residents should know about the challenges their town faces and its decision-makers’ squabbling. But I was the only journalist among the six onlookers in the room, and I wasn’t there to cover the board. There was nobody from a daily newspaper in the area or from a television or radio station.

Decades ago, at least three outlets sent reporters to every session of Ware’s governing board: a weekly community paper, a local radio station and my old employer, the Daily News in Springfield, the third biggest city in Massachusetts. Daily News reporters covered towns throughout western Massachusetts and into northern Connecticut. The paper had a correspondent who focused on Ware and a few nearby towns, and he attended meetings of town officials from the Board of Assessors to the Cemetery Commission.

Today, Ware is close to becoming a news desert. Townspeople complain that the media have forgotten them, Beckley told me. What remains, he said, is “a lot of Facebook speculation, where people are guessing at the news. It’s quite rampant here.”

One reporter from the weekly paper, the Ware River News (circulation: 4,200), did watch the Selectboard meeting. Paula Ouimette caught it on Zoom because she was too busy to show up in person. Ouimette is also the paper’s editor, copy editor, proofreader, photographer and office manager, and she writes the police log. She fills similar roles for another weekly: the Quaboag Current. The papers cover a total of nine towns, and Ouimette said she can barely keep up. “If I tell people the hours I work,” she told me, “no one would enter this field.”

Ouimette wrote a summary of the meeting but said she hasn’t had the time or resources to take a comprehensive look at the pros and cons of privatizing, and what the experience of other towns has been. “It would make for an excellent story,” she said.

It’s no secret that local news is in an advanced state of decline. Since 1990, the number of newspaper employees in the U.S. has plunged from 455,000 to fewer than 90,000, even as the population has increased by a third. Repeated humiliations — most recently, a police raid on a Kansas weekly and the home of its publisher — underscore the reduced clout of newspapers.

Springfield, Massachusetts, exemplifies this trend. When I worked there from 1978 to 1981, it had two newspapers, the Daily News and the Morning Union, with a combined circulation of 150,000. They have since merged into one paper, now called The Republican, which has an average daily print circulation of 14,560. The Daily News alone employed 85 reporters, editors and photographers, about four times as many journalists as The Republican has today.

“The industry has changed so much that 1980 might as well have been 1880,” Jack Flynn, a reporter for the Daily News and its successors for 42 years, told me.

The Springfield Daily News’ city room staff in front of the newspaper building, circa 1979. The author is visible, just to the right of the central pillar in the back of the group, in a white shirt and black-frame glasses. (Courtesy of Daniel Golden)

Many observers have lamented the damage wrought to communities by the diminishing of newspapers, from reduced civic engagement to the failure to hold corrupt or incompetent officials accountable. Amid a constant assault of dubious information on social media, people often know less, and consequently care less, about their local government than they once did.

As they vanish, local newspapers are taking on a halo of everything that used to be good about America. They’ve come to symbolize not just halcyon days of neighborly virtues — imagine “It’s a Wonderful Life” if Jimmy Stewart played the editor of the Bedford Falls paper — but the very “bedrock of American democracy.”

If my own experience was any indication, the reality was considerably more complicated. The Springfield Daily News didn’t always fulfill its watchdog role. Like a doting parent, it lavished attention on its community, but sometimes with a paternalism that chose to conceal problems in the service of what it thought was a broader good. The same focus that inundated readers with information about every committee meeting, crime and high school football game fostered a certain coziness with the area’s power players. Boosterism and conflicts of interest occasionally interfered with telling the full story. It’s possible we would have done a searching examination of a plan to privatize Ware’s water system — unless we risked offending a powerful local figure or business interest.

Mark Marchand had his reality check in the summer of 1981. Marchand, who covered the middle-class suburb of Agawam for the Daily News, learned that some airplane hobbyists were upset that tiny Bowles Airport, where they flew their two- and four-seat propeller planes, was about to close to make room for an industrial park. Marchand talked to them and filed a story reflecting their concern that they wouldn’t be able to find hangar space nearby.

That afternoon, Marchand recalled, he was surprised to learn that Richard Garvey, the Daily News’ top editor, was looking at his draft. It wasn’t the kind of big scoop that Garvey normally reviewed before publication. But, without talking to Marchand, he rewrote it. “Developer Ready to Invest in Bowles Airport” ran the next day, under Marchand’s byline, touting the industrial park plan. It didn’t quote a single airplane owner.

Marchand inferred the reason for the revised framing of the story from Garvey’s final paragraph. (Garvey, like many people in this article, is deceased.) It noted that the site of the potentially lucrative development was owned by the company that published the Springfield newspapers. “I was inconsolable,” Marchand told me. “Very embarrassed. None of the plane owners called me after that.”

I belong to the Watergate generation. I was 15 when the White House Plumbers broke into the Democratic National Committee headquarters, 17 when President Richard Nixon resigned and about to turn 19 when the film “All the President’s Men” dramatized the exploits of Washington Post investigative reporters Bob Woodward and Carl Bernstein.

I yearned to emulate them and was the recipient of what today might be considered an unneeded leg up. Ben Bradlee, the Post’s illustrious executive editor of Watergate fame, was on a list of Harvard alumni offering career advice to aspiring journalists from his alma mater. After I graduated, in 1978, I went to see him in the Post newsroom, which looked a lot like it did in the movie. Bradlee glanced at my resume, which listed my experience as a reporter for two summers at my hometown semiweekly, and growled, “What the hell is the Amherst Record?” He briefly raised my hopes by saying he might “hide” me on some inconspicuous beat at the Post, but an assistant shook her head.

Bradlee urged me to find a reporting job in the grittiest, seamiest city I could find, so I could learn firsthand about power and corruption in America. He said his own son, Ben Bradlee Jr., had started his career in Riverside, California.

The newspaper where my former Amherst Record editor was working, and had offered me an internship, fit Bradlee’s specifications. “How about Springfield, Massachusetts?” I asked.

“Perfect,” Bradlee said.

In those days and for decades after, jobs at local newspapers were seen as an invaluable training ground, an irreplaceable mix of apprenticeship and hazing. They taught the kind of tradecraft that wasn’t part of any journalism school curriculum. Reporters fresh out of college learned to high-tail it to a fire or shooting; to buttonhole officials before and after public meetings; to take notes in pencil outdoors in winter, because ink congeals in the cold; and to meet deadlines and word limits. They learned, along with their readers, about the people and institutions they covered.

And so it would be for me — that is, if I could pass the typing test. The sole prerequisite to be hired as a reporter by the Springfield Daily News was the ability to type at least 50 words a minute on an electric typewriter. The test crushed the hopes of many promising candidates, including Larry Parnass, who interviewed for a job in 1977. He barely missed the cutoff, managing 47 words a minute. Parnass deferred his journalism dreams to work as a Midwest salesman for Oxford University Press. He later became a reporter and editor and finally got a job in Springfield this year, as The Republican’s executive editor. Nobody checked his typing this time around.

Fortunately, my fingers were up to the challenge and I passed the test. In August 1978, I joined the Daily News. An afternoon paper, it pumped out six editions a day for readers from Enfield, Connecticut, to Massachusetts suburbs like Westfield and Agawam. “Late City,” with a noon deadline for copy, was for Springfield itself. Each edition carried a “Hometown” section with news and advertising aimed at places like Ware and its surrounding communities.

Springfield, best known as the birthplace of basketball and of Theodor Geisel, aka Dr. Seuss, was a city of 150,000 on the Connecticut River. Once a thriving manufacturing center, which produced the Springfield rifles used in the Civil War and both world wars as well as the Indian motorcycle, it had never recovered from the Great Depression. I rented an apartment on a street that was halfheartedly trying to gentrify and rolled out of bed at 6:30 every morning to get to the office by the 7 a.m. starting time.

The bustling newsroom, which Daily News and Union staff shared, was as big as a supermarket. The air was filled with cigarette smoke and the racket of clattering typewriters, editors yelling reminders of how many minutes to deadline, phones ringing, static from police scanners and the occasional thunk of a chair thrown in anger.

My 33 months there, first as an intern and then as a general assignment reporter, provided an intensive course in local coverage. I interviewed victims of welfare cuts, evictions and police brutality. I covered anti-nuclear protests, visiting celebrities (novelist Norman Mailer, activist Abbie Hoffman, baseball slugger Hank Aaron), a tornado and a plane crash where I saw a dead body for the first time. I profiled outstanding high school seniors, a centenarian, a whittler and a slippery real estate developer who I described as walking “a tightrope of debts and dreams.”

The first and most important principle: News events — even distant ones with no connection to the region we covered — had to be given a “Springfield angle.” So when the Mount St. Helens volcano erupted 3,000 miles away in Washington state, killing 57 people, I was assigned to write a feature about the prospects for a similar disaster in Massachusetts. A phone call to a geologist ascertained that since the state has no volcanoes, we had nothing to worry about. I thought I was off the hook, but editors wanted the story anyway. It ran with a huge photo of volcanic ash billowing from Mount St. Helens, under the headline, “It can’t happen here.”

Editors’ desire to “localize” the story of the eruption of Mount St. Helens, 3,000 miles away in Washington state, led to this examination of the geology of western Massachusetts. (Springfield Daily News)

The Daily News had a proud history. It was founded as The Penny News in 1880 by two brothers, Charles and Edward Bellamy. Edward would go on to write one of the biggest-selling American novels of the 19th century, “Looking Backward,” which envisioned a socialist utopia. From the 1920s, the same local company owned the News and the Union. But they competed for scoops and endorsed opposing candidates, enabling Springfield residents to buy a paper that agreed with their politics — or complain about one that didn’t.

Newhouse Newspapers acquired the Springfield papers in 1966. Back then, big chains competed to buy local papers because they were so profitable. In 1973, the Daily News broke one of its biggest stories: that the Pentagon planned to close Westover Air Force Base in Chicopee, where bombers were stationed during the Cold War and returning prisoners of war from Vietnam were reunited with their families.

“Newspapers had the resources for intensively local coverage,” recalled Steve Newhouse, who worked as a reporter and copy editor for the Union from 1979 to 1982. The grandson of S.I. Newhouse, founder of the newspaper group, he now chairs its digital arm. “You needed to do editions to serve local advertisers. It really worked out nicely.”

Despite its local focus, the Daily News staff didn’t reflect Springfield’s increasing diversity. The city was 26% Black and Hispanic in 1980, but the newspaper was overwhelmingly white. Dorothy Clark, who came in 1979, was the only Black reporter “for a few years at least,” she recalled recently. Journalism jobs were hard to come by for people of color, so, after graduating from the University of Massachusetts, Clark had resigned herself to a job as a hotel desk clerk. Then one of her journalism teachers, who was also a Daily News reporter, recommended her for a reporting position. Besides covering elder affairs, “I did dig into a lot of stories related to African American history,” she said. “That was a personal interest.”

About half of the news reporters were women, but the editors were almost all men. Generationally, the newsroom was divided between ambitious young reporters, who saw the Daily News as a stepping stone and were eager to make a splash, and lifers who at times seemed threatened or annoyed by the upstarts. “There was reverse prejudice toward me that I’d gone to Smith,” a prestigious women’s college near Springfield, recalled Kim Hessberg, who later became director of public relations at the Boston Symphony Orchestra.

Sam Hoffman, movie critic and Chicopee bureau chief, was more welcoming to the younger crowd. But another side of Hoffman emerged when I filled in for him once in Chicopee, just north of Springfield. It was a slow day until someone showed up with a wedding or engagement announcement, and gave me the details along with a $5 bill.

Surprised, I waved off the money. “It’s free,” I said.

“That’s funny,” he said. “Sam charges five bucks.”

Much of the staff enjoyed another perk. The Eastern States Exposition, a 17-day annual fair in West Springfield, provided a hefty roll of free tickets to the Daily News, which covered the “Big E” as assiduously as London newspapers cover a coronation. The publicity included a daily listing of events, front-page articles touting record-breaking attendance and frequent features.

When fewer free tickets filtered down to the newsroom one year, city editor Jim Powers was livid. He assigned our premier investigative reporter, Ed Fogarty, to dig into the fair. “We were going to crack open the story,” Fogarty recalled recently. “Whatever it was.” But he couldn’t find any impropriety — unless you count the free tickets.

My former Amherst Record boss, John Bart, headed the Daily News copy desk. As he showed me around on my first day, he nodded toward Fogarty and said approvingly, “He’ll ask anybody anything.”

I hoped to be praised similarly someday. But my early assignments were light features: a horse-drawn covered wagon that passed through town, a couple who were married in a balloon. I snuck into fraternity parties to compare real-life drunken hijinks with those in a hit film, “Animal House.”

A white-haired copy editor named Austin Kenefick noticed my efforts and wrote a gracious note. Much as minor-league teammates revered catcher Crash Davis in “Bull Durham” because he had spent 21 days in the big leagues, Austin was respected by colleagues because he had worked as a reporter for The Washington Post — until, he recalled recently, he forgot to make a standard check for police news one night. The Post missed the capture of a notorious criminal. Kenefick was fired, and he ended up in Springfield.

“This is a very frustrating game,” Kenefick wrote. “You won’t be given enough time to go over a favorite piece ‘one more time.’ You will have to write with incomplete information. The printers, or layout man, or copy-cutter, or someone, will lose that critical, qualifying, third paragraph. Withal, there is nothing else quite like newspapering … and the strong ones, the resilient ones, the persevering ones, benefit and grow and prosper.”

The author’s early work at the Daily News tended toward light features and the occasional first-person humor column. (Springfield Daily News)

I worried that the editors on the city desk didn’t trust me to cover news. I tried to impress them, and allay any resentment of my Ivy League degree, by working extra hard. My shift ended at 3 p.m., but I often hung around the newsroom afterward, looking for an opportunity. One came on election night in 1978. The editors had neglected to assign anyone to the local campaign of an underdog candidate for the U.S. Senate, Paul Tsongas. When early returns showed him winning, I rushed to his victory party, interviewed his campaign manager and others, hurried back to the newsroom and wrote my first lead front-page story.

That same fall, a seemingly trivial assignment would turn into another break — one that would help propel me from intern to staff reporter. The kindly assistant city editor, Ab Hachadourian, asked me one day to find out what home heating oil would cost that winter.

This was not a subject I was familiar with. But the Yellow Pages contained a sizable roster of home heating oil dealers, and I began calling them. They told me that they expected the price per gallon, then 50 cents, to skyrocket. I wrote a story reflecting their prediction. Hachadourian promptly stashed it in his desk. I didn’t ask why, but Daily News editors tended to err on the side of timidity. Hachadourian probably felt that if such important news was happening, a 21-year-old intern wouldn’t be among the first to find out.

I was disappointed. But the dealers were right; in fact, the price would climb to 84 cents the following fall. Soon major newspapers vindicated me by proffering similarly dire assessments. I freshened up my draft with a new angle — that the oil price hike would popularize wood-burning stoves — and Hachadourian ran it.

Suddenly I was the Daily News’ energy expert. Calling the U.S. Department of Energy, I was shuttled to an official who suggested chatting off the record. I was thrilled. Woodward and Bernstein had their Deep Throat, who had guided the Post’s Watergate investigation from the shadows of a parking garage (and decades later was revealed to be a top FBI official). Now I had my own!

Fed up with government policy, my source anticipated widespread gasoline shortages. I channeled his alarm in such articles as “‘Gas’ Demand Could Result in Major Shortage: Station Closings, Shorter Hours Loom.”

Some nerve-wracking moments ensued. A press official from the Department of Energy guessed my source’s identity and warned me not to trust him. But Deep Oil proved prescient. By the next spring, some states were rationing gasoline, service stations were reducing hours or closing, and cars were lining up around the block to refuel. I reported the story day after day, on an almost gas-station-by-gas-station basis. At the peak of the crisis, I called stations in northern Connecticut as soon as I got to work, asked how long the lines were, and filed a story for the Connecticut edition’s 8 a.m. deadline. Then I phoned stations in Palmer and Ware, and folded the new material into the existing story. I did the same for the other four editions, pushing Connecticut further down until it dwindled to a couple of paragraphs at the bottom of the Late City version. It was the ultimate realization of local coverage: the same news, rejiggered for each circulation zone.

I usually wrote fast, oblivious to distractions. But once I froze on deadline. As the minutes ticked by, assistant managing editor Wayne Phaneuf, a restless dynamo with a Mark Twain mustache, hovered, waiting for my copy. Finally he said to no one in particular, loud enough so I would overhear, “Wouldn’t you think a Harvard graduate would know how to tell time?”

Every morning, stringers — reporters who weren’t on staff — would call the city room from nearby towns, looking to dictate their stories to someone. And when the caller was Brad Smith from Ware, 25 miles northeast of Springfield, I often volunteered. Tapping out his prose on an IBM Selectric typewriter, and getting to know Ware’s personalities and problems through his eyes, it felt almost as if I were covering the town myself.

Brad Smith, who covered Ware for the Daily News, working the phone. His was one of the paper’s most prolific bylines. (Cathy Mara)

Bradley F. Smith was one of the Daily News’ most prolific bylines. He wrote mainly for the Metro edition, which covered Ware, Palmer and the nearby hill towns, though if the stories were important enough, they ran in every edition. He was well sourced in Ware, and he delivered plenty of scoops. After a fire destroyed two businesses in a former mill complex, putting 125 people out of work, he broke news on the arson investigation and insurance negotiations. Another child of Watergate, Smith enjoyed chiding town officials. If the town of Ware had considered selling its utilities on his watch, he told me recently, “I would have looked a lot deeper.”

But municipal meetings were his mainstay. Since he was paid by the number of meetings he covered and column inches he generated, he subjected readers to all of them: Selectboard, School Committee, Finance Committee, Board of Assessors, Conservation Commission, Cemetery Commission, Parks and Recreation, and more.

“I can remember driving to three towns in one night on a regular basis to get to three or four meetings,” recalled Smith, who’s now a drummer in Florida. “Then I’d write the stories until midnight.” By covering so many meetings, Smith became the first Daily News stringer to earn more than $1,000 a month, equivalent to about $3,500 today. Then, as now, local news was not known for lavish salaries.

We called it the “Springfield Journalism Revue.” Most Friday afternoons, Phaneuf and a group of reporters would unwind at the Hotel Charles on Main Street. The Charles, which burned down in 1988, was a rundown relic of Springfield’s glory years, with a grandiose lobby, mildewed burgundy carpeting, cheap food and flat beer.

We had a regular table and the waitress would ignore our sometimes unruly carousing. Everybody had to buy a round. I was a slow drinker, so four or five beers would soon be lined up next to the one I was nursing. Somebody always drank them.

Most Journalism Revue participants were young reporters, eager to soak up lore from Phaneuf and his pals. One veteran political reporter, Don Ebbeling, often regaled us with the latest sexual and financial shenanigans at City Hall or the Statehouse. But he rarely included such juicy fare in his column, “People and Politics,” As dry as a train schedule, it listed fundraisers, retirement parties and the like. A typical item: “State Sen. John P. Burke, D-Holyoke, chairman of the Senate Public Safety Committee, will be holding office hours in Holyoke and Westfield on April 11.”

At first I wondered if Ebbeling was too old school to divulge secrets, or couldn’t nail them down, or feared losing access. Then a simpler explanation occurred to me: perhaps that the paper’s bigwigs liked his column the way it was. They tolerated Smith’s assaults on officials in an outlying small town, but they didn’t want such scathing scrutiny of Springfield’s politicians and businesses.

David Starr, a Newhouse executive and publisher of the Springfield papers, didn’t subscribe to the post-Watergate ethos of adversarial journalism. He believed the papers’ primary purpose was to guide and collaborate with city leaders. The bow-tied Starr was president of a downtown redevelopment organization and a political kingmaker. “He felt that if the papers were going to be a success, Springfield had to be a success,” Phaneuf told me.

Starr once wrote that urban revitalization depended on a “true working partnership” between elected officials, businesspeople and media. But less advantaged groups often felt left out of the partnership. “We still deal with the impression that this newspaper is in bed with the power structure in Springfield,” Parnass, The Republican’s executive editor, told me. “I don’t want to be chums with anybody.”

After two Hispanic residents complained within a week in March 1980 that police had bashed their heads in, a colleague and I began exploring police brutality in Springfield. During our reporting, I learned that Springfield received 102 brutality complaints in 1979, far more than comparable cities, and hadn’t disciplined a single officer. Those findings became the core of a four-part series, sealed by a powerful quotation supplied by Hampden County’s crusty district attorney, Matthew Ryan Jr.: “It irks me when a man of average size or smaller with his head bandaged like a swami is brought in by a six-foot, 200 pound policeman with a gun who doesn’t have a mark on him and says he was assaulted.” The editors let the series run largely as written, albeit with a weak title: “Police Brutality: Fact or Fiction?”

Ryan had his own dark side, though you wouldn’t read much about it in the Daily News. Soon after I left the paper to work at The Boston Globe, a political foe accused Ryan of protecting a mobbed-up friend, John Francis McCarthy, who allegedly shot at two police officers. I decided to poke around. I drove to Springfield and examined documents in the county courthouse — Ryan’s domain — before heading to McCarthy’s bar, The Keg Room. When I introduced myself, McCarthy said, “I heard you were looking up my file.” He then walked away, communicating that the conversation was over. I ignored the hint and followed him to the basement of the bar. McCarthy turned to face me. He was known as “Ox,” and from his massive dimensions and menacing air, the nickname appeared apt. As I gamely tried to question him, he hoisted a large bag of ice and began pouring a cascade of cubes closer and closer to my feet. Belatedly realizing that our dialogue was unlikely to be productive, I retreated up the stairs and returned to Boston.

In 1990, the Globe reported that Ryan had “intervened repeatedly” in cases “in ways that benefited Mafia figures and their associates.” Editors at the Union-News — the Daily News and the Union had merged in 1987 — conceded that they had been aware of Ryan’s Mafia associations but didn’t run the damaging material because it couldn’t be substantiated. Ebbeling told the Globe that the Daily News had killed negative stories he had written about Ryan dating back to the late 1960s.

I hadn’t known about the history between the Daily News and Ryan, and wondered if I had benefited from it. If the paper hadn’t been so kind to Ryan, perhaps the DA would’ve been less inclined to help a young reporter — me — by denouncing police abuse.

The newspaper still occupies the same building, on Main Street in Springfield, that it did when I worked there. But part of the first floor, where the business offices used to be, is now a marijuana dispensary.

The odor of cannabis wafted up the back stairs toward the cavernous, second-floor newsroom. There I saw the ghosts of editors past: Garvey humming happily as he strode past my desk; Carroll Robbins, the dour managing editor, scolding me for misusing a semicolon; Powers, long-faced and grumpy, handing me an obituary that a reporter had written for herself before she died of cancer, and ordering me to pare it down.

Parnass showed me his “time capsule”: ancient newspapers retrieved from unoccupied desks that he cleaned out when he arrived in February. The Springfield newspapers used to be “the primary generator of news for the four western Massachusetts counties,” he told me. “It is not that organization any longer. … At some point in the future, this newspaper can’t defy what’s happening everywhere: the diminution of print.”

The picture is not entirely grim. Several sources supplement The Republican’s revenue and readership. Its presses print 141 other publications from Maine to Pennsylvania. The company owns a chain of 12 free community weeklies that mostly sell ads to “tiny guys that never would advertise in The Republican,” publisher and CEO George Arwady told me. MassLive, an online outlet of Newhouse’s Advance Local, is growing statewide, he said. Articles by The Republican’s staff appear first on MassLive. Both the weeklies and MassLive also have their own reporters. “We’re doing just fine,” Arwady said. “More people read our journalism today than ever, even when you were here.”

The Republican still produces significant work, especially about my old preoccupation, police brutality. Its reporting helped spur a 2020 U.S. Department of Justice investigation that found that the Springfield Police Narcotics Bureau engaged “in a practice or pattern of using excessive force.” Two years later, under a consent decree with the Justice Department, the city agreed to improve training and supervision.

Stephanie Barry, an investigative reporter who leads the police brutality coverage, said she appreciates Arwady’s exertions to keep The Republican afloat. “I would hate to see the paper fold,” she said. “It would break my heart. But if I’m still doing journalism, whether digital or in print, it’s all about the work for me.” For now, at least, she can still do that at a daily paper.

Lynn Dombek contributed research.

by Paul Kiel

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In a long-awaited development, the largest audit in the history of the IRS has finally taken its next step. On Wednesday, Microsoft announced that the agency had notified the company that it owes $28.9 billion in back taxes, plus penalties and interest.

The case is epic not only in dollars but in scope. As ProPublica reported in an in-depth narrative in 2020, the IRS saw the case as a chance to prove the agency’s effectiveness. Often cowed by the prospect of facing off against corporations with endless resources, the IRS set out to be bolder and more aggressive. It took the unusual step of hiring a corporate law firm to represent the agency, a step that incensed Microsoft. The company, along with others in its industry, responded by rallying allies in Congress to rein in the IRS.

The audit is already well over a decade old and figures to grow older, since Microsoft is allowed to appeal the IRS’ conclusions and says it plans to. The audit focused on a deal the agency would later describe as “illusory in nature, serving no material economic purpose except to shift income.” In 2005, ProPublica wrote, Microsoft “sold its most valuable possession — its intellectual property — to an 85-person factory it owned in a small Puerto Rican city.” Having struck a favorable tax deal with Puerto Rico, Microsoft then channeled its profits to the facility, which burned Windows and Office software onto CDs.

At the time, some Microsoft executives celebrated this “pure tax play,” and they had reason for optimism. Initially, the IRS did not take an aggressive tack. An early audit resulted in a much more modest change in 2011.

But earlier that same year, the IRS had set up a new unit to audit intra-company deals that sent U.S. profits to tax havens — deals that were especially common among tech companies like Google, Facebook and Apple. The leader of the new unit decided that Microsoft’s deal in Puerto Rico was worth a much closer look. The IRS withdrew its initial finding and dug in to build a deep, comprehensive case.

By the time ProPublica published its story on the audit in 2020, the two sides had sued each other, and one case had long been stuck in court. Almost three years after the last motions in the case, a federal judge still had not ruled on whether the IRS should receive documents it was seeking. Shortly after ProPublica asked the court for an update, the ruling finally came down.

The judge sided with the IRS, writing “the Court finds itself unable to escape the conclusion that a significant purpose, if not the sole purpose, of Microsoft’s transactions was to avoid or evade federal income tax.” He agreed with the IRS’ characterization of the deal as a tax shelter.

For the next three years, the case disappeared from public view until Microsoft’s announcement.

“We believe we have always followed the IRS’ rules and paid the taxes we owe in the U.S. and around the world,” wrote Daniel Goff, a senior Microsoft executive, in a blog post on the company’s site that revealed the IRS’ determination.

The $29 billion that the IRS was seeking, he wrote, covered 2004 to 2013. He asserted, however, that the total, were the IRS to ultimately prevail, would be reduced by about $10 billion in taxes that Microsoft has already paid on its overseas profits. A major feature of President Donald Trump’s 2017 tax bill was a requirement that companies repatriate those profits, though they paid a special, low tax rate when they did. Microsoft had stored up $142 billion in offshore profits by 2017.

The conclusion of the audit sends the fight to a new phase. The IRS has an internal appeals division, and Microsoft said it would pursue its arguments there. It’s a significant development since the IRS had once signaled that it would bar Microsoft’s access to an appeal, a stance that led to blowback in Congress from the company’s allies. IRS appeals officers, who are independent of the auditors, often settle cases for steep discounts out of fear that the agency will lose a court battle. The appeals process is secret.

If Microsoft does not get the result it wants there, it can take its case to the U.S. Tax Court. Each step is likely to take years, meaning the case could easily stretch into the late 2020s.

The IRS attorneys who worked on the case believed it to be, by far, the largest U.S. audit ever, and the amount the IRS is seeking from Microsoft is several times larger than in any other publicly disclosed audit in the agency’s history. The case, in a way, is the last, great vestige of the IRS before it was gutted by budget cuts over the course of the 2010s and corporate audits plummeted. While the recent infusion of billions from the Inflation Reduction Act will allow the agency to rebuild itself in the coming years, the Microsoft case shows the fruit of those efforts could take a long, long time to reap.